Opinion
November, 1911.
Defendant has been convicted of a misdemeanor in violating section 2411 of the Penal Law, which provides as follows: "A person who injures or defrauds another by using with knowledge that the same is false, a false weight, measure or other apparatus, for determining the quantity of any commodity, or article of merchandise, or by knowingly delivering less than the quantity he represents, is guilty of a misdemeanor." Defendant, who was engaged in business as a butcher, was claimed to have violated this section in that he sought to charge one Brennan two dollars and ninety-seven cents as the purchase-price of a turkey claimed by him to weigh eleven pounds, when in fact it weighed but ten and one-half pounds. Brennan parted with no money, for defendant refused to accept a five-dollar bill tendered in payment. There is no claim that false weights were used, and the conviction must rest, if at all, on the contention that defendant had injured or defrauded Brennan in some way by delivering less than the quantity of the article as represented. As Brennan gave no money or other consideration of any kind to defendant, never retained possession of the turkey, and the sale never was actually consummated, he never was injured or defrauded in any way. The evidence discloses no more, at most, than an attempt to commit the crime charged, and falls far short of justifying the conviction. The judgment of conviction must be reversed and the defendant discharged. Ingraham, P.J., Laughin, Clarke and Scott, JJ., concurred. Judgment reversed and defendant discharged. Order to be settled on notice.