City of New York v. Hewitt, 86 N.Y.S. 832

City of New York v. Hewitt

86 N.Y.S. 832 | N.Y. App. Div. | 1904

Jenks, J. :

This is an appeal by the city of New York from a judgment of the Municipal Court dismissing the complaint in its action brought to recover a penalty for a violation of an ordinance in relation to the sealing and inspection of weights and measures in the city of New York, which reads as follows: “ If any person shall use in the City of New York, in weighing or measuring as aforesaid, any weight, measure, scale beam, patent balance, steelyard or other instrument, which shall not conform to such standard, or shall use in weighing, as aforesaid, any scale beam, patent balance, steelyard or other instrument, which shall be out of order or incorrect, or which shall not balance, he, she of they shall forfeit and pay for every such offense the sum of twenty-five ($25) dollars.”

The uncontradicted testimony established that the defendant had in actual use a balance for weighing ice, which, upon a test of fifty pounds, registered sixty pounds. The defendant testified that he *446had used the balance' foi1 a season or more ; that he had never tested it, and that he had never used it after the inspection. The court dismissed the complaint. It is quite evident that the court did not thus adjudge upon the determination that the plaintiff had failed in its case, for the learned justice writes: “ There does not appear to have been any intentional .alteration of the scale in question, and, therefore, I do not wish to impose the penalty.”- ■ Thus the court in effect says that it may impose the penalty, i. e., the plaintiff is enti-, tied to recover, but' that the court does not give judgment for the plaintiff because the case does not show that there was any intentional alteration.

The judgment must be reversed. First, there is no question of alteration, whether intentional or unintentional, involved, for the ordinance is aimed at-the use, in Weighing, of a balance out of order or incorrect., or which shall not balance. Second, the ordinance is presumed to be reasonable. (Mayor v. D. D., E. B. & B. R. R. Co., 133 N. Y. 104.) And the element of intent or willfulness of any kind is not in this case, As the penalty prescribed is founded upon the use of a false balance, without requirement of proof of intent or guilty knowledge, proof thereof is not essential. (People v. Kibler, 106 N. Y. 321 ; People v. West, Id. 293, 297 ; People v. Schaeffer, 41 Hun, 23.) The ordinance is aimed against him who, using the false balance, holds it out to be true by representing that it properly determines the price which he requires for the commodity. If, then, this judgment can be sustained at all, it must be upon the ground that the court may, as matter of benignity, suspend the operation of the ordinance against an individual. The. court had no power of dispensation. (Mayor v. Bruns, 23 Misc. Rep. 635.)

The judgment should be reversed and a new trial ordered.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ,