People v. Swift & Co.

Lazansky, P. J.

(dissenting.) I concur to the extent that the judgment should be reversed, but dissent as to the dismissal of the information and remission of the fine, and vote for a new trial.

The able and experienced city magistrate, holding a Court of Special Sessions, found that the “ inspection ” made by defendant was not an inspection at all. By that he undoubtedly meant that the defendant’s inspection ” was highly superficial and inadequate. I agree with him.

*303Defendant receives in its place of business in cases, each containing twelve frozen and “ non viscerated ” chickens, lots or classes numbering from fifty to one hundred, sometimes four hundred cases, which are placed in a storeroom or cooler. Out of such lots as they are received, three to five cases are inspected by examining the tops or breasts of the chickens as they lie in the case. But neither the sides (called hips), nor the part lying on the bottom of the cases, which will be called the backs,” is examined. From the cooler they are taken to the salesroom for later, or sometimes for immediate, sale. Before being taken to the salesroom, they are examined in the same way as when received. Only the tops or breasts of the chickens in three to five cases out of each twenty to twenty-five cases are inspected. When an actual sale is being made in the salesroom, only the tops or breasts of the contents of each case are once again examined, this time both by customer and salesman. If, perchance, the top or breast of the chicken discloses a foul condition, then all parts of the twelve chickens in the case are examined and, if found unwholesome, they are not sold. In no instance of the three examinations, which defendant claims it makes, is there a full examination unless the top shows defects. If the top be in good condition, yet the sides or hips or the backs ” are in bad condition, the goods are nevertheless sold. So it was when the examination was made in the cooler by the inspectors of the health department. Defendant’s only witness testified that the poultry condemned by the inspectors was “ off condition,” but “ it was on the hips, not on the breast of the chickens; that we can’t see it. * * * This mold showed on the hips, didn’t show on the breast.” He also said that if there was poultry bad on the bottom (“ the backs ”), it would go out of the place on sale in such condition, unknown to us.” The sum and substance of the testimony of this witness for defendant is that if “ inspections ” made by defendant do not show on the tops or breasts “ something suspicious,” the case of chickens is sold even if the sides or hips or “ the backs ” are in a condition unfit for human consumption. There can be little doubt that such procedure opens the door of opportunity for the sale of countless thousands of pounds of unwholesome food. In marketing large quantities of frozen food of this type, it is fair to assume that each case cannot be opened and each chicken separately examined. But here, as in the handling of other foods, there must be observed a rule of fair average inspection, which would at once not be unreasonable to commercial interests and yet would satisfy reasonable regulations necessarily adopted for the protection of public health, which is of more importance than trade advantage. The testimony *304referred to clearly shows that the examinations made by defendant were not reasonably likely to disclose the real condition of the poultry held for sale. Inspection much more stringent than that made by this defendant would afford a greater liberality to the handlers of such food than does the Agriculture and Markets Law to those who handle milk. Mere possession of adulterated milk is a violation of the law. (People v. Kibler, 106 N. Y. 321; People v. Bowen, 182 id. 1.)

In my opinion, these goods were being held for sale by defendant. Although sales were not generally made directly from the cooler, they were held there for sale, to be transferred to the salesroom, subject to the two inspections above referred to, each of which is inadequate to show the true conditions. In People v. Wallace & Company (282 N. Y. 417) the information was dismissed by the Court of Appeals because it was held that there was no intent on defendant’s part to violate the Sanitary Code, based on the finding of the trial court that defendant would not use the canned goods if, on inspection, they were found to be unwholesome. Here the goods had already been examined by defendant and, despite their defective condition, would have been delivered to a customer. However, wrongful intent is essential to a finding of guilt. The magistrate did not directly consider that phase of the case. He inferred that intent from the inadequate inspection. It appears that defendant had been following the procedure above stated for fifteen years, and there was testimony given in its behalf that the procedure adopted by it was according to trade custom. This does not establish the sufficiency of the inspection, but may indicate absence of bad faith. There was no proof of prior violations. Therefore, there should be a new trial to determine the question of intent. The procedure of defendant and the alleged custom may then be considered in light of other experiences of defendant with the authorities as to prior violations by defendant of section 163 of the Sanitary Code which may have taken place, as suggested by discussions at the end of the trial.

Judgment of a city magistrate, holding a Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting defendant of a violation of section 163 of the Sanitary Code of the City of New York, reversed on the law, information dismissed, and the fine remitted.