Opinion
February 10, 1935.
Garey Garey [ Earl J. Garey and John J. McNaboe of counsel] for the relator.
William C. Dodge, District Attorney [ Irving Tell, Deputy Assistant District Attorney, of counsel], for the respondent.
This is a proceeding on a writ of habeas corpus. Relator was charged with a violation of section 435-a of the Penal Law. After a hearing before a magistrate he was held for trial before the Court of Special Sessions.
A peddler's automobile truck stopped at the curb in front of the place of business of relator. Approximately twenty briskets of beef were unloaded and placed on a hand truck which proceeded along a passageway of the building toward the receiving room where their receipt and handling were to be supervised by a mashgiach or a rabbi employed by relator, and upon whose recommendation that they were kosher depended their acceptance and purchase. Before the hand truck reached the receiving room, however, it was halted by a city health inspector, who found that some of the briskets had no tag or blumba attached certifying the same to be kosher.
There is involved here the construction of such section which, so far as applicable, provides (Penal Law, § 435-a): "A person, who, with intent to defraud sells or exposes for sale any meat * * * and falsely represents the same to be kosher, * * * is guilty of a misdemeanor." Relator had possession of the meat, though title thereto had not yet passed. But possession alone, minus any showing that the meat is part of a stock in trade, does not constitute an exposure for sale. In the circumstances here disclosed the briskets had not yet become "part of the stock of their business." In the well-reasoned opinion of Magistrate GOLDSTEIN, in People v. Branfman Son, Inc. ( 147 Misc. 290, 295), it is stated: "Possession in and of itself is not exposure for sale. * * * Stock in trade * * * is merchandise exposed for sale. * * * It was part of the stock and, therefore, exposed for sale."
This interpretation appeals to me as sound and sensible and is here adopted. "Exposure for sale" means "having in stock." Mere possession does not constitute the crime charged as in the case of a violation of section 172 of the Sanitary Code. (See People v. Zeleznik, 266 N.Y. 59.)
In view of the conclusion reached, other questions (such as, for instance, whether the briskets not so tagged were kosher) become academic and are not decided. What is decided is that the record is barren of proof to show that the offense as charged was committed. There was no sale. There was no exposure for sale within the purview of the statute. Consequently, the writ is sustained and relator discharged.