The defendant was properly convicted for violating section 2147 of the Penal Law as it existed at the time the sale here in question was made. This section provides that all manner of public selling or offering for sale of any property upon Sunday is prohibited, except that articles of food may be sold and supplied at any time before ten o’clock in the morning, and also that meals may be sold, to be eaten on the premises where sold, or served elsewhere by caterers.
Tho defendant at the time was conducting the ordinary delicatessen store. At about four-thirty p. m. on Sunday, ¡November 17, 1912, he sold some cooked ham and sturgeon. This fact is not disputed. There is no pretense or claim made that *442the ham and sturgeon were to he eaten on the premises. The store was wide open at the time, many persons going in and out, and sales made in precisely the same way they were on other days of the week.
The defendant was properly convicted on his own admission. The sale in question violated the section of the statute referred to, unless we are, by judicial construction, to read into the statute something which does not there appear. In this connection it is to be observed that by chapter 346 of the Laws of 1913 the section was amended so as to permit delicatessen dealers to sell, supply, serve and deliver cooked and prepared foods on Sunday between four and seven-thirty p. M.
For these reasons I dissent and vote to affirm the conviction.
Clarke, J., concurred.
Judgment reversed, fine remitted and defendant discharged. Order to be settled on notice.