107 N.Y.S. 100 | N.Y. App. Term. | 1907
We are of the opinion that the evidence is insufficient to justify the recovery of a penalty. The city inspector testified that he saw the coal weighed, and stated the process adopted, as well as the gross and net weights, although he was somewhat uncertain as to the precise conditions, attending the weighing. The official certificate of weight contains merely the statements: “Dealer’s weight of coal, 4,000 lbs.,” “Weighmaster’s weight of coal, 3,900 lbs.” The statute provides that:
“Every owner of such scales shall keep a book, in which shall be entered in ink a memorandum of every load of coal weighed at such scales, showing the name of the person, firm, or corporation delivering such coal, the net weight thereof as shown by the delivery ticket thereof of such person, firm, or corporation, the name of the purchaser thereof, the gross and net weight of the coal so weighed, and the date of weighing.”
The statute evidently contemplates that the right to recover a penalty shall be based on the official record of weight. Although the weighmaster in this case kept a book the entries in which, we infer, conform to the statutory requirements, there appears in evidence a
Judgment reversed, and new trial ordered, with costs to appellant to abide event.
