From the opinion we infer that the court was influenced, perhaps controlled, by Dr. David Kennedy Corporation v. Kennedy, 165 N. Y. 353, 59 N. E. 133, where there was an actual dispute as to who was entitled to receive the mail coming to the post office. The Post Office Department at Washington, at the instigation of the parties, interfered, and gave directions about the delivery of the mail, and the dispute was such, and of such importance, that it was necessary for the court to settle the rights of the parties to the mail which came to the post office. Here there is no dispute about the mail or its ownership. There are a few isolated mistakes, which were promptly corrected in the manner the contract provided that such mistakes should be corrected. There has been no intentional violation of the plaintiff's rights. The mistakes shown were unintentional, and were of no possible injury to the plaintiff, and are too trivial to require injunctive relief. The judgment should therefore be reversed upon the law and the facts, and the complaint dismissed, with costs. All concur. PEOPLE ex inf. EYLERS v. ARMOUR & CO. (Supreme Court, Appellate Division, Second Department. December 15, 1916.) 1. WEIGHTS AND MEASURES 6-SALE OF BACON IN CONTAINER BY WEIGHT -STATUTE. Where a packing company, without fraud and to the knowledge of the customer, sold by weight bacon weighing 5% pounds in a container weighing 6 ounces, there was no violation of General Business Law (Laws 1912, c. 81) § 16, as amended by Laws 1913, cc. 426, 514, providing that all meat shall be sold or offered for sale by weight, since the statute does not denounce false weights, but a particular course of dealing. [Ed. Note. For other cases, see Weights and Measures, Cent. Dig. § 8; Dec. Dig. ~6.] 2. WEIGHTS AND MEASURES 6-SALE OF BACON BY WEIGHT IN UNMARKED CONTAINER-STATUTE. Where a packing company, without fraud and to the knowledge of the customer, sold by weight bacon weighing 5% pounds in a container weighing 6 ounces, it violated General Business Law, § 17, as amended by Laws 1913, cc. 426, 514, providing that, when commodities are sold or offered for sale in containers, the net quantity of the contents of each container, or a statement that the specified weight includes the container, the weight of which shall be marked, shall be plainly and conspicuously marked, branded, or otherwise indicated on the outside, etc. [Ed. Note. For other cases, see Weights and Measures, Cent. Dig. § 8; Dec. Dig. 6.] 3. CONSTITUTIONAL LAW 70(3)-JUDICIAL FUNCTIONS-WISDOM OF ACT. In determining whether a certain act is a violation of a certain statute, the court is not concerned with the wisdom, convenience, benefit, or policy of the act. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 131; Dec. Dig. 70(3).] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. WEIGHTS AND MEASURES 6-STATUTE-"CONTAINER." A wrapper placed about 5% pounds of bacon by a meat packer was a "container," within the meaning of General Business Law, § 17, as amended by Laws 1913, cc. 426, 514, requiring the marking of the net quantity of commodities sold in containers, since section 17c states that a container shall include any carton, box, crate, barrel, wrapper, parcel, or package. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. § 8; Dec. Dig. 6.] Appeal from Westchester County Court. Armour & Co. was convicted of an offense on the information of John D. Eylers, and it appeals. Judgment reversed as to the second count, and affirmed as to the first count, of the information. Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and RICH, JJ. John B. Stanchfield, of New York City, for appellant. E. G. Griffin, Deputy Atty. Gen. (Egburt E. Woodbury, Atty. Gen., on the brief), for respondent. THOMAS, J. The defendant at Yonkers sold to a person bacon in a wrapper placed at Chicago, Ill. The wrapped article was correctly weighed in the purchaser's presence, and that of the local sealer of weights and measures, and the payment accorded with the true gross weight. Nothing denoting weight appeared on the wrapper, but the purchaser knew that he was getting what he sought and was not deceived. In brief, the whole matter was arranged for a test case. Hence the question of immediate fraud is absent, while actual agreement in what was done is implied. The inquiry, then, is whether the statute compels certain things to be done, irrespective of the convention of the parties. The respondent's maximum contention is that the Business Law (Chapter 81, Laws of 1912) required the vendor to mark on the wrapper (1) the net weight of the bacon, and (2) the gross weight, whereby the weight of the wrapper could be calculated. The bacon and wrapper weighed 6 pounds, and the container 6 ounces. The evidence discloses that about two-thirds of the bacon sold by defendant in this state is unwrapped, and that in either form the price per pound is the same; that the wrapping is to guard against contamination, shrinkage, and to preserve the quality of the meat, and that a piece of bacon weighing from 6 to 7 pounds at Chicago shrinks from 6 to 84 ounces during the two weeks following wrapping, and that the interval of 15 to 18 days was usual between shipment at Chicago and sale at Yonkers; and that, when placed about the bacon, the wrapper, according to tests, would weigh about 41⁄2 ounces. What precise offense did the defendant commit? For that, reference must be had to the statute, and not to what the superintendent of weights and measures may mave superimposed. The information has two counts. The second in effect is that defendant sold the bacon and charged therefor at the gross weight of the meat and container, without stating to the purchaser the net weight. As to that count, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes then, the question is whether it was an offense for the vendor to sell to an informed and willing customer the bacon upon the basis of gross weight. The learned Attorney General states in his brief: "We are not prosecuting Armour & Co. for selling by false weight. It was found that the meat and package together weighed exactly what the defendant represented them to weigh. We are prosecuting the defendant for failure to mark, and for selling meat and paper together at meat prices." [1] To sustain the second count, the respondent relies upon section 16 of the General Business Law (chapter 81, Laws of 1912, as amended by chapters 426 and 514, Laws of 1913). The section is: "Methods of Sale of Certain Commodities. All meat, meat products and butter shall be sold or offered for sale by weight. All other commodities not in containers shall be sold or offered for sale by standard weight, standard measure or numerical count; and such weight, measure or count shall be marked on a label or a tag attached thereto: Provided, however, that vegetables may be sold by the head or bunch." The statute in the first sentence is declaratory of an exclusive and unconditional method for selling meat, meat products, and butter. As to all other commodities, a choice of method is afforded-weight, measure, or numerical count, which, whatever it may be, shall be marked on an attached tag or label, but vegetables may be sold by the head or bunch. The meat in the present case was sold by weight, and by no other method; but the defendant claimed the right to include the cover, and the customer assented. It is not the truth that the defendant sold in some other method than by weight. A case might arise where a sale should be regarded as made by count, because the weighing was a mere pretense or form to evade the statute. But the facts here indicate no such intention, and if it be kept in mind that the prosecution is not based on false weight, the conclusion is reached that section 16 was not offended. In City of New York v. Wilkinson Bros. & Co., 151 App. Div. 660, 136 N. Y. Supp. 219, it was decided that section 388, Code of Ordinances of the City of New York, as amended July 11, 1910, did not provide an exclusive method for selling a bale of twine at the gross weight of the twine and covering. The decision rested on City of New York v. Fredericks, 150 App. Div. 83, 134 N. Y. Supp. 796, afterwards affirmed in the Court of Appeals, 206 N. Y. 618, 100 N. E. 419. The ordinance there involved (Code of Ordinances, § 388) did not prohibit the sale of bacon in jars, and by the jar, without weighing the same; but it was remarked in the opinion by Bartlett, J.: "The community has now been protected against imposition in the sale of canned commodities by the enactment of chapter 81 of the Laws of 1912, amending the General Business Law so as to provide that the net contents of the containers shall be indicated on the outside thereof." Section 381 was later considered in City of New York v. Sulzberger & Sons Co., 80 Misc. Rep. 660, 141 N. Y. Supp. 876, with similar disposition. There is here no charge of fraud, or false weighing, and there is no indication that the weighing was a formality, or mere evasion of the prescribed method, and I am unable to discover that the defendant's act offends the section in its word or spirit. It is true that, if a statute requires meat to be weighed and sold at the exact weight, six ounces of paper cannot be added; but section 16 does not denounce false weights, but announces a particular course of dealing, and, if it appear that the vendor in good faith followed the method, he may not be punished because he included the wrapper. Indeed, the statute authorizes the vendor to weigh the meat and container, and there is no prohibition against charging on the basis of the gross weight. But in that case something must be done, and if it be omitted there is an offense, not by reason of section 16, but of section 17, to which section 16 is allied. Section 17 is: "Net Contents of Containers to be Indicated on the Outside Thereof. When commodities are sold or offered for sale in containers of other sizes than those specified in section 16a or whose sizes are not otherwise provided by statute, the net quantity of the contents of each container, or a statement that the specified weight includes the container, the weight of which shall be marked, shall be plainly and conspicuously marked, branded or otherwise indicated on the outside or top thereof, or on a label or a tag attached thereto, in terms of weight, measure or numerical count: Provided, however, that reasonable variations shall be permitted." It requires one of two things to be done in case of commodities, other than those exempted, sold or offered for sale in containers, viz. that the net quantity of the contents of each container shall appear on the wrapper, or a statement that "the specified weight" includes the container, the weight of which shall so appear. The respondent urges that both the weight of the meat and the weight of the wrapper must be marked on the wrapper. Section 17 has these descriptive preliminary words: "Net contents of Containers to be Indicated on the Outside Thereof." [2] Unless such net weight appear, the net contents are not shown. But to what do the words "specified weight" refer in the clause "or a statement that the specified weight includes the container," etc.? They could not mean the net weight, for that could not include the weight of the wrapper. The section is obscure, but the section does at least require that data shall appear on the wrapper showing its weight. If the customer see by markings on the wrapper how many ounces of paper at meat prices he is purchasing, he knows how much meat he is receiving, for the vendor would tell him the gross weight for which he makes charge. But in the case nothing appears, and no attempt to obey the statute is indicated. The present discussion does not involve the question of "reasonable variations" in the weight of the meat or container. Except as otherwise suggested, the intent and purpose of sections 16 and 17, separately and united, appear. [3] With the wisdom or convenience, benefit or policy, of the statute, the court is not concerned. That the Legislature acted with power is not denied. The intention of section 17 is to provide a record on the wrapper that shall be the only means of establishing the weight of the container, to the end that the vendor may not be heard to say that the purchaser was informed in some other way, or that he waived information. The statute should not be dependent on evidence of what the parties agreed concerning its observance. The statute requires that meat be sold by weight, and, if wrapper be included, that its weight be shown. Taking into consideration the provision for reasonable variations in weights, what the state has adopted seems most fair. In any case it is exclusive. Armour & Co. v. North Dakota, 240 U. S. 510, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548. [4] The defendant urges that the wrapper used was not a container within the meaning of section 17. Section 17c states that: "A container,' as used in this article, following section 15 thereof, shall include any carton, box, crate, barrel, wrapper, parcel or package." A container is a wrapper. The covering of the bacon answers fully to the definition of a wrapper. The judgment of the County Court of Westchester County, affirming judgment of conviction of the Court of Special Sessions, is reversed as to the second count, and affirmed as to the first count. All concur. FITZGERALD v. BROOKLYN INSTITUTE OF ARTS AND SCIENCES. (Supreme Court, Appellate Division, Second Department. December 22, 1916.) 1. EXPLOSIVES 10-ACTIONS FOR INJURIES-EVIDENCE-Due Care. In an action for injuries caused by the explosion of a disinfectant, which plaintiff and others were using on stuffed bird specimens in a case, where the evidence showed that the quantity used in a space of that size formed a highly explosive mixture, and that it was likely to dissolve the insulation on electric wires in the case, whereby a spark sufficient to explode the mixture could be created, the jury could find that a man of skill and caution would not have used such a quantity under those circumstances. [Ed. Note. For other cases, see Explosives, Cent. Dig. § 7; Dec. Dig. 10.] 2. EXPLOSIVES 10-INJURIES-NEGLIGENCE-IGNORANCE. It is negligence for an unskillful and uninformed man to use a quantity of disinfectant which produces an explosive mixture, under certain circumstances liable to explode, where it would not be used by a man familiar with its qualities. [Ed. Note. For other cases, see Explosives, Cent. Dig. § 7; Dec. Dig. 10.] 8. EXPLOSIVES 10-ACTIONS FOR INJURIES-EVIDENCE-CAUSE OF EXPLOSION. Evidence which showed that a gaseous mixture in a case could not explode without ignition, that it tended to dissolve the insulation from electric wires thereby creating a spark, that there was no other agency present, and that an explosion did occur, is sufficient to show that the explosion was caused by an electric spark. [Ed. Note.-For other cases, see Explosives, Cent. Dig. § 7; Dec. Dig. ~10.] 4. MASTER AND SERVANT 252-INJURIES TO SERVANT-NOTICE TO EMPLOYER-SUFFICIENCY. A notice stating that the employer's foreman was negligent in furnishing an explosive disinfectant, and using it in large quantities in close proximity to plaintiff without warning him, is sufficient under the Labor For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 162 N.Y.S.-40 |