163 Misc. 887 | New York City Magistrates' Court | 1937
The charge against the defendant is that she sold, on Sunday, February 21,1937, after ten o’clock in the morning, certain “ cup cakes,” and in this violated section 2147 of the Penal Law, a statute designed to regulate public traffic on Sundays.
The pertinent provisions of the section read:
“ All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows: 1. Articles of food may be sold, served, supplied and delivered at any time before ten o’clock in the morning: * * *
“ 4. Prepared tobacco, milk, eggs, ice, soda-water, fruit, flowers, confectionery, souvenirs, newspapers, gasoline, oil, tires, drugs, medicines and surgical instruments, may be sold in places other than a room where spirituous or malt liquors or wines are kept or offered for sale and may be delivered at any time of the day.”
It is urged in behalf of the People that these cup cakes are not comprehended in the term “ confectionery ” used in the statute and, hence, not within the part of it which permitted sales after ten o’clock in the morning on Sundays. For the defendant it is argued that they are comprehended in that term in the statute. The enactment contains no definition of the disputed term. The People’s argument, summarized, is that it embraces “ candy,” among other things, but not cake; while that for the defendant ascribes to it a far greater latitude of meaning, wide enough at least to admit within it the dainties she sold. It becomes necessary, therefore, first to seek within the word itself for what meaning it contains, and next to consider its general acceptation. It is obvious that a strict definition of it is impossible for the reason that it is not a term of description, specifying any substance or form of the objects to which it may be applied. Its progenitor, the verb “ confect,” merely means to “ compound,” “ prepare,” “ construct,” or “ put together ” (Funk & Wagnalls New Standard Diet.), and any compound is, in a literal sense, a confection. Thus, according to the same lexicon: Confection. 1. “ Any mixing or compounding, or the article so produced. (1) An article of confectionery; a sweetmeat. (2) Med. An electuary; a conserve. (3) Any compound of drugs or spices. And thou shall make it a perfume, a confection after the art of the apothecary, tempered together, pure and holy. Ex. XXX, 35. 2. An attractive, stylish article of furniture or dress for women, as a wrap, mantle, or the like. 3. Any compound or preparation.” And, according to judicial authority (United States v. Meadows & Co., [C. C.] 147 F. 757; affd., 154 id. 1005; 83 C. C. A. 297), an apothecary was in former times called a “ confectionery or confectioner, because he used sweets to disguise the nauseous taste of his medicines, and thus by analogy, we have come to look upon the confectioner as the master of the art of making candy and confections.” “ Candy,” in contradistinction of the broad word “ confectionery,” has come to fairly describe only
The case of United States v. Meadows & Co. (supra), cited for the People, cannot aid in the present case. It arose under the tariff act and the court was called upon to say, for the the purpose of determining the amount of duty to be paid on an importation, whether the goods should be classified as confection, on the one hand, or sweetened biscuits and sugar wafers on the other. After observing that “ It is not an easy matter to draw an exact dividing line between candy and pastry,” it proceeded to a determination based considerably on a disinclination toward making, at the time, a change in classification previously made under the tariff act. But a decision of the amount of duty to be paid on an importation under the tariff act is a different matter from a criminal prosecution, and I am persuaded that under the facts of that case, a criminal charge clearly would not have been sustained because of the very difficulty the court itself found in drawing a dividing line between candy and pastry. And it has been said also that “ the provisions of a penal statute are to be construed more strictly than the terms of a contract.” (People v. Friedman, 132 App. Div. 61, 62.)
The information is dismissed and the defendant discharged.