The information alleges that defendant “ did unlawfully have, keep and offer for sale a quantity of food, to wit: about one hundred and twenty (120) pounds of poultry, for use as human food which was not then healthy, fresh, sound, wholesome and safe for human food in that said poultry was covered with white, green and black mold.”
Section 163 of the Sanitary Code of the City of New York, so far as material, provides: “No meat * * * not being then healthy, fresh, sound, wholesome or safe for human food * * * shall be brought into the City of New York or held, kept, offered for sale or sold as such food or kept or stored anywhere in the said City. * * * term ‘ meat ’ as used herein shall include í í fowl $ J? j
Defendant, a wholesale dealer in food, conducts its business in a three-story and basement building. The main, or street floor, is used as a salesroom and the basement as a storage room. The salesroom is in fact a large ice box or ice room. The basement is divided into two sections, one of which is used for the storage of butter, cheese and eggs, and the other for the storage of frozen poultry, which is kept in a cooler. The court found that the storage room is used exclusively by defendant’s employees, is kept under lock and key and is not used for the purpose of sales; nor is it accessible to customers. The poultry delivered to defendant’s premises is packed in boxes. Each box, which contains twelve chickens and weighs approximately forty-five pounds, is made secure with a hook and wire. The poultry is delivered to the basement in refrigerated cars and before it is sold it is inspected three different times by the defendant. The first inspection takes place upon the arrival of the poultry and before it is placed in the cooler. When a shipment is received the poultry is classified for size, quality and color. The wires are removed from three to five boxes of each classification, the boxes are opened, the paper covering taken out and the birds examined. If anything looks suspicious all the birds are taken from the box and if any are unwholesome they are destroyed. If the birds appear sound the covers are put back and the lot is then placed in the cooler. When poultry is required on the sales floor, twenty or twenty-five boxes are requisitioned from the cooler, three to five boxes are opened and *301the contents examined in the storage room for the second time; and if they appear to be sound the lot is sent to the salesroom. Before the poultry is sold every box is opened in the presence of the customer and the contents examined for the third time, in this instance both by the defendant’s salesman and the customer. Each bird is removed from the box only when they “ look as if they are in any way off condition.”
On November 15, 1939, two inspectors from the department of health visited defendant’s premises. They examined the poultry in the salesroom and found it to be wholesome. Upon being informed that there was poultry in the storage room, they proceeded to the basement, where they found between 100 and 125 boxes, or approximately 6,000 pounds of poultry in the cooler, which was a smaller quantity than was in the salesroom. They inspected 20 boxes of the lot and found 22 chickens, weighing about 120 pounds, which concededly were unwholesome. There was no box in which all the chickens were unsound. The court found that, while no sale of any of the merchandise was consummated, the poultry in the cooler “ eventually is in fact sold unless and until it is found to be unwholesome and its further progress into public food channels is intercepted as a result of its condemnation either by the defendant itself or, as in this case, by the representative of the Department of Health.” The court held that the merchandise in the cooler was being kept for sale within the meaning of the ordinance, and found the defendant guilty.
In our opinion, particularly in the light of the recent holding in People v. Wallace & Company (282 N. Y. 417), the judgment must be reversed. There the defendant was charged with a violation of section 163 of the Sanitary Code upon an information similar to that in the instant case. The inspector found in the storeroom of defendant’s factory twelve cans which were swollen and bulging and contained grapes that had become unwholesome. Defendant was a manufacturer of candy and it made no use of the foodstuffs kept under lock and key in its storeroom without first inspecting them, and any article found on inspection not to be wholesome was put aside. The court, in reversing the judgment of conviction and dismissing the information, pointed out that the trial court in effect held defendant’s possession of the cans was in good faith and not with intent to use or sell the contents should inspection disclose an unwholesome condition. Judge Lottghran then stated (p. 419): “ On this record, then, the judgment of guilt must mean that the defendant’s mere possession of the containers made it answerable as for a crime once the ensealed grapes became unwholesome. The argument of the Corporation Counsel takes the case that way and, *302indeed, the broad text of section 163 — that no unwholesome food shall be ‘ kept or stored anywhere in the said City ’— appears to go a long distance in that direction. But a penal statute is not necessarily to be liberally applied in all circumstances. ' For the rule that penal statutes are to be construed strictly something may be said. When acts are to be made penal and are to be visited with loss or impairment of life, liberty, or property, it may well be argued that political liberty requires clear and exact definition of the offense.’ (Pound, 21 Harvard Law Rev. 383, 387. See People v. Shakun, 251 N. Y. 107.) It is our best judgment that no considerations of expediency require such unfairness as would result were section 163 of the Sanitary Code to be so freely construed as to force its application to the facts which in this case were found below. (Cf. People v. Killer, 106 N. Y. 321.) ”
The Wallace case is authority for the proposition that possession alone, without intent to sell unwholesome food, is not a violation of the ordinance. In the instant case there can be no doubt of appellant’s good faith. It inspected the merchandise three times before it was offered for sale and, upon inspection, any poultry found unwholesome was destroyed. It is true, as the court found, that the poultry in the cooler was intended “ eventually ” to be sold, but it is equally true, and the court also found, that it was not to be sold if it had been found by the defendant to be unwholesome. This was tantamount to a holding that the defendant acted in good faith.
In our opinion defendant made an honest effort to ascertain if the poultry was unwholesome and did not intend to sell it if inspection disclosed it was unsound; and as the court found no sale was consummated, the judgment should be reversed on the law, the information dismissed and the fine remitted.
Carswell, Adel and Close, JJ., concur; Lazansky, P. J., concurs for reversal, but dissents from the dismissal of the information and the remission of the fine, and votes to order a new trial, with opinion.