The evidence failed to establish that the defendant’s possession of the impure food was for the purpose of sale in that condition, in violation of section 163 of the Sanitary Code. (People v. Woolworth Co., 250 App. Div. 864; People v. Woolworth Co., 246 id. 838.) Possession, without intent to sell, is not included in the ordinance. (People v. Timmerman, 79 App. Div. 565; affd., 179 N. Y. 550.) In the present case any presumption of intent to sell arising from the possession of the impure food (Sanitary Code, art. 9, § 138*), was successfully repelled by the defendant’s proof.
The judgment should be reversed and the information dismissed.
Present — Martin, P. J., O’Malley, Townley, Glennon and , Untermyer, JJ.
Judgment unanimously reversed and the information dismissed.