author: Hubbs, J. O’Brien, J.

text:
    The People of the State of New York, Respondent, v. Ralph Grieco, Appellant.

      (Argued December 3, 1934;
    decided December 31, 1934.)

      Melvin F. Kinkley for appellant.
    The court erred in holding the misdemeanors named in the indictment were the misdemeanors affecting the person or the property of the person killed or of another. (Penal Law, § 1050, subd. 1; Vehicle and Traffic Law, § 70, subd. 5; Cons. Laws, ch. 71.) On examination and drawing of the jury, the defendant’s constitutional rights were violated. (Code Crim. Proc. § 385; People v. McQuade, 110 N. Y. 284.)

      Howard B. Donaldson, District Attorney, for respondent.
    Reckless driving is a misdemeanor specified in section 1050 of the Penal Law. (Cons. Laws, ch. 71, § 58; People v. Darragh, 141 App. Div. 408 ; 203 N. Y. 527; People v. Grogan, 260 N. Y. 138.) No error was committed in permitting the People to challenge peremptorily a previously accepted juror. (Code Crim. Proc. § 371; People v. Hughes, 137 N. Y. 29; People v. Elliott, 66 App. Div. 179; 172 N. Y. 146.)
   Hubbs, J.

Defendant has been convicted of the crime of manslaughter in the first degree for causing the death of Grace Burgess while in an intoxicated condition and engaged in driving an automobile in a reckless manner. In so far as is material here, the indictment charged the defendant with the crime of manslaughter in the first degree in two counts:

1. While engaged in committing a misdemeanor affecting the person of one Grace Burgess,” the deceased, while violating subdivision 5, section 70 of the Vehicle and Traffic Law of the State (Cons. Laws, ch. 71).

2. While in the act of committing a misdemeanor, to wit, reckless driving in violation of section 58 of the Vehicle and Traffic Law of the state.”

The learned trial judge, in charging the jury under the first count of the indictment said: “ I say to you, as a matter of law, that subdivision 5 of section 70 of the Vehicle and Traffic Law is, under section 1050 of the Penal Law, a misdemeanor affecting the person or property either of the person killed or of another.”

The jury was instructed under the second count of the indictment that the defendant was in the commission of a misdemeanor in that he was at that time violating section 58 of the Vehicle and Traffic Law * * * that is a misdemeanor contemplated in section 1050 of the Penal Law as affecting the person or the property of the person killed, or of another.”

Counsel for defendant duly excepted to those parts of the charge. The jury found the defendant guilty of manslaughter in the first degree and being a second offender, he was sentenced to a term of twenty years’ imprisonment.

It is not contended that the defendant intentionally ran down the deceased or that he saw her before the moment of contact. The question presented is whether a conviction of manslaughter in the first degree was legal under the indictment and the facts established. That is, was the misdemeanor charged and proved a misdemeanor of the class specified in subdivision 1 of section 1050 of the Penal Law, which reads: Manslaughter in first degree. Such homicide is manslaughter in the first degree, when committed without a design to effect death: 1, By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another.”

Was the violation of the provisions of the Vehicle and Traffic Law charged a misdemeanor ‘' affecting the person or property, either of the person killed, or of another? ” If it was not, the charge was erroneous and the conviction of the defendant of manslaughter in the first degree was illegal although he might have been convicted of manslaughter in the second degree. Subdivision 5 of section 70 of the Vehicle and Traffic Law provides that Whoever operates a motor vehicle or motorcycle while in an intoxicated condition shall be guilty of a misdemeanor.” Section 58 of the Vehicle and Traffic Law makes reckless driving, as therein defined, a misdemeanor. The jury has found that the defendant while committing the misdemeanor charged in the indictment caused the death of decedent. The acts charged were that the defendant drove his automobile in a reckless manner while intoxicated. True it is that he was engaging in an act which constituted a misdemeanor. How can it be said, however, that the unlawful act in which he was engaging was “A misdemeanor, affecting the person or property, either of the person killed, or of another? ” Defendant did not intentionally hit the deceased. He did not see her until the very instant of contact. The degree of the crime cannot be fixed by analyzing the constituent acts which, in combination, make up the transaction, and viewing them distributively. It is determined by the quality and purpose of the transaction as a whole.” (Messersmith v. American Fidelity Co., 232 N. Y. 161, 166.)

A moment before the collision the defendant’s conduct constituted a crime, a misdemeanor against society, against law and order and against the People of the State. The commission of the misdemeanor in which he was engaged was not one affecting the person or property of deceased or of another. He had not seen the deceased and did not know that she was present. The fact that his automobile struck her could not instantly change his conduct so as to make it an act affecting the person of the deceased and thereby make him liable for the crime of manslaughter in the first degree. Manifestly, the Legislature never intended that the statutes should have that effect. The words “ affecting the person or property, either of the person killed, or of another,” used in section 1050, subdivision 1, must be given a reasonable meaning, one in harmony with the other provisions of the Penal Law. The Vehicle and Traffic Law makes many offenses misdemeanors. If this conviction should be sustained, every driver of an automobile, who, while committing one of the offenses defined as a misdemeanor in that act, accidentally causes the death of a person will be guilty of the crime of manslaughter in the first degree no matter how thoughtless or unintentional the act. The intent to commit the minor offense would make the driver guilty of the more serious offense of manslaughter in the first degree without regard to how innocent of an intent to commit that grave offense the driver might be.

A driver who violates a provision of the Vehicle and Trafile Law which makes certain conduct a misdemeanor should be punished for such misdemeanor as provided in that act.

He may also be convicted of an assault in the third degree, if, while driving in a culpable, negligent manner, he causes another to suffer bodily injury. (Penal Law, § 244, subd. 2.)

If the conduct constituting such a misdemeanor has in addition the elements which constitute culpable negligence and he causes the death of another, then section 1052, subdivision 3, of the Penal Law is applicable and the driver may be convicted of manslaughter in the second degree.

If he causes the death of another while engaged in the commission of a misdemeanor “ affecting the person or property, either of the person killed, or of another,” he is guilty of manslaughter in the first degree. (Penal Law, § 1050, subd. 1.)

To summarize, if a person drives an automobile in a reckless manner or while intoxicated, he is guilty of a misdemeanor under the Vehicle and Traffic Law. Under the same circumstances, if he injures another while driving in a culpable, negligent manner, he is guilty of assault in the third degree. If he causes the death of another while driving in a culpable, negligent manner, he is guilty of manslaughter in the second degree. A conviction may be had for manslaughter in the first degree if, at the time, the driver is engaged in committing or attempting to commit a misdemeanor affecting some particular person or property as distinguished from a misdemeanor affecting society in general.

As the conduct of the defendant did" not constitute a misdemeanor affecting the person or property of Grace Burgess, deceased, or of another, he could not be legally convicted of manslaughter in the first degree because of the fact that he was at the time engaged in the commission of a misdemeanor charged in the indictment.

The conclusion which we have reached is sustained by analogy in the decisions of this court in cases where defendants were convicted of felony murder under subdivision 2 of section 1044 of the Penal Law, where death resulted from the commission of an assault. "While the analogy from those decisions may not be complete, the implication is clear. In those cases it was contended that one who commits an assault in the second degree is engaged in the commission of a felony and if, while so engaged, the assault results in the death of the person assaulted, the assailant is guilty of a felony murder although the other elements constituting first degree murder are not established. This court has consistently decided to the contrary. In the case of People v. Huter (184 N. Y. 237, 244) Judge Haight said: “ It is apparent, therefore, that the gist of the offense is the assault and when it is by violence inflicting an injury to the person so assaulted, resulting in death, the act becomes a constituent part of the homicide and is merged in the ch&rge therefor.” (Cf. People v. Spohr, 206 N. Y. 516; People v. Wagner, 245 N. Y. 143.)

In the case at bar the indictment is for manslaughter in the first degree while engaged in the commission of a misdemeanor. We have reached the conclusion that the misdemeanor charged was merged in the charge of manslaughter in the first degree and, therefore, that there could not legally be a conviction of manslaughter in the first degree because of the fact that the defendant* was at the time engaged in the commission of the misdemeanor charged in the indictment.

In the case of People v. Darragh (141 App. Div. 408; affd., 203 N. Y. 527, without opinion) a contrary conclusion was reached by a majority of the members of the Appellate Division. When the case reached this court, the question discussed in the opinion in the Appellate Division was not open as the record did not disclose an exception which raised that question at the trial, and this court was without jurisdiction to review the question. (People v. Huson, 187 N. Y. 97.)

Error was also committed in the selection of the jury. Jurors were called to the box. The District Attorney examined them and excused certain ones. He then stated that the twelve jurors then in the box were acceptable to the People. The attorney for the defendant then examined the twelve jurors accepted by the People and excused two. Two other jurors were drawn to take the place of the two excused by defendant’s counsel. The District Attorney examined them and excused both, also a juror who had previously been examined and accepted by the People and the defendant’s counsel. The defendant’s counsel objected but the objection was overruled and the People were permitted to exctise the juror peremptorily. The defendant’s counsel duly excepted. The ruling was in violation of the provisions of section 385 of the Code of Criminal Procedure and the decision of this court in the case of People v. McQuade (110 N. Y. 284).

The judgment should be reversed and a new trial ordered.

O’Brien, J.

(dissenting). I vote for affirmance. Defendant’s conviction of the crime of manslaughter in the first degree for the death of Grace Burgess is based wholly on the second count of the indictment. It charges that he killed her while he was violating a municipal ordinance which had established traffic signal lights and that in violation of this ordinance he operated his automobile onto and across a safety zone which she was then crossing. The same count charges that the homicide occurred while defendant was also in the act of committing the misdemeanor of reckless driving in violation of section 58 of the Vehicle and Traffic Law.

The evidence proves that, while he was intoxicated, defendant drove past the red light through the safety zone, struck Mrs. Briant, struck and killed Mrs. Burgess, and, within two or three seconds thereafter, collided with another car, the property of a third person. His conduct was in contravention of the ordinance and it constitutes the misdemeanor defined by section 58 of the Vehicle and Traffic Law. By the manner in which he drove his car he unreasonably interfered with the free and proper use of the public highway and he unreasonably endangered users of the public highway (People v. Grogan, 260 N. Y. 138, 149), including the three individuals specifically concerned with his conduct.

If defendant was engaged at the time of the homicide in committing a misdemeanor “ affecting the person or property, either of the person killed, or of another ” (Penal Law, § 1050, subd. 1), he is guilty of manslaughter in the first degree. The fact that defendant did not intentionally run down the deceased does not appear to have any relevancy to the case. The gravamen of the misdemeanor is failure to exercise the care of the reasonably prudent man. (People v. Grogan, supra.) If he failed to see his victim when he should have seen her, he has committed this misdemeanor. The question .is, therefore, whether the commission of this misdemeanor was such a one as affected ” the person or property either of Mrs. Burgess or of another. In ascertaining the correct answer to this question, courts are admonished that our Penal Law is not to be strictly construed but that it must be construed according to the fair import of its terms to promote justice and effect the objects of the law. (Penal Law, § 21.) We are warned against indulging in elaborate subtleties and are obliged to interpret language according to its ordinarily accepted meaning. Reasoning should not be unduly refined; words must not be tortured. To “ affect ” is defined by Webster as meaning “ to produce an effect on,” and, as judicially defined, it signifies “ to act upon, to produce an effect or change upon ” (Canniff v. Mayor, 4 E. D. Smith, 430, 439); “ acting injuriously upon persons and things ” (Ryan v. Carter, 93 U. S. 78, 84); concern ” (United States v. Ortga, 11 Wheat. 467, 468). Not only did defendant’s commission of the misdemeanor as defined by section 58 of the Vehicle and Traffic Law offend society in general but it affected the person of Mrs. Burgess and simultaneously affected the person of Mrs. Briant and almost instantaneously affected the property of the owner of the car with which defendant collided. Of course the commission of a misdemeanor which is in no way related to the killing cannot in reason be deemed such a misdemeanor as section 1050 contemplates. For illustration, one who is using boisterous and profane language in public against a particular individual and thereby is tending to cause a breach of the peace, but who, at the same time is driving carefully and conforming in every respect with the laws relating to traffic, unfortunately collides with and kills another person negligently proceeding directly into his path, would be engaged in the commission of a misdemeanor but it would not be such a misdemeanor as affects persons or property in the sense intended by the statute. Defendant’s act of misdemeanor was the direct cause of the killing. If he had not recklessly driven past the signal into the safety zone while his victims were rightfully there, the homicide would not have occurred. That the misdemeanor to which section 1050 refers need not be separate from the act of killing seems to be the more reasonable view. (People v. Stacy, 119 App. Div. 743, 748; People v. Darragh, 141 App. Div. 408, 418.)

Without showing in what manner, if any, his substantial right was violated on the trial, defendant raises a second point, relying upon sections 385 and 386 of the Code of Criminal Procedure and People v. McQuade (110 N. Y. 284), that reversible error was committed in allowing the People peremptorily to challenge a juror and in excusing that juror after he had been accepted but before he had been sworn. The record in the McQuade case, decided in the year 1888, differs from the record before us. The opinion in that case makes no reference to the provisions of section 371 of the Code of Criminal Procedure. The facts apparently did not warrant their application. Here they seem to control. Section 371 provides: “ A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action.” In People v. Hughes (137 N. Y. 29, 36) this court, without mentioning the decision in the McQuade case, thus defined this section: “ The obvious meaning of section 371 is that a challenge for { good cause,’ which is required to be taken before the juror is sworn, may nevertheless be taken thereafter ■— and before evidence is given, in the discretion of the court.” After a juror had been sworn in the Hughes case, the District Attorney stated that he desired to interpose a peremptory challenge, the reason being that matters had come to his knowledge since the juror was sworn leading him to believe that the juror was not satisfactory. We held on that record that the trial court did not abuse discretion when it permitted a peremptory challenge upon the assurance of the public officer empowered by the law to represent the People in the prosecution of criminals. In the case at bar, the record shows that, during the examination of jurors, a short recess was taken and that, after the court reconvened, a juror previously accepted but not sworn was peremptorily challenged by the People. What occurred between court and counsel during the recess is not disclosed by the record. There was no request by defendant to cause a record to be made and we cannot assume that the court arbitrarily set aside the juror without good cause. Defendant’s counsel contented himself with an objection to the juror being excused and an exception based solely on the ground that the juror had previously been accepted by the People. The objection was not directed to any alleged abuse of discretion but rested upon the assertion of a lack of power to excuse. The court certainly was empowered to excuse in the exercise of discretion (People v. Hughes, supra; People v. Elliot, 66 App. Div. 179; affd., 172 N. Y. 146) and no facts appear tending to show an abuse.

Pound, Ch. J., Crane,Lehman, Crouch and Loughran, JJ., concur with Hubbs, J.; O’Brien, J., dissents in opinion.

Judgment reversed, etc.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Louis Zeleznik, Appellant.
    (Argued November 26, 1934;
    decided December 31, 1934.)

      Joseph Cohn, Earl J. Garey, Meyer Machlis and Mitchel J. Valicenti for appellant.
    Since the meat was duly inspected and passed “ by a duly authorized inspection of the United States Department of Agriculture ” and had been both stamped and labeled as provided by the Federal laws and regulations, the ordinance was fully complied with. ( United States v. Rohe & Bro., 218 Fed. Rep. 182; State v. Peet, 80 Vt. 449; United States v. Northwestern Fisheries Co., 224 Fed. Rep. 274; Griswold v. New York Ins. Co., 1 Johns. 205.). The evidence is, as a matter of law, insufficient to sustain the judgment of conviction. (Corbin v. United States, 181 Fed. Rep. 296.)

      Paul Windels, Corporation Counsel (Ralph W. Thomas and Paxton Blair of counsel), for respondent.
    The meat consisted of parts of carcasses and fell expressly within the scope of section 172 of the Sanitary Code requiring such parts to be marked, stamped or branded as having been inspected and passed. (People v. French Bottling Works, 259 N. Y. 4.) It was proved beyond a reasonable doubt that at least twenty-eight pieces showed no marks of branding or stamping whatsoever and that is sufficient to sustain the conviction. (People v. French Bottling Works, 259 N. Y. 4; MacRae v. Chelsea Fibre Mills, 145 App. Div. 588; Jorgensen v. Jaeger, 257 N. Y. 171; Gilbert v. Rosen, 232 N. Y. 296; Matter of Case, 214 N. Y. 199; Faber v. City of New York, 213 N. Y. 411; People ex rel. Stephenson v. Bingham, 205 N. Y. 168; Otten v. Manhattan Ry. Co., 150 N. Y. 395.)
   Hubbs, J.

The appellant has been convicted of a violation of section 172 of the Sanitary Code of the city of New York in keeping and offering for sale thirty pieces of meat contained in barrels, which were parts of carcasses of steers and which were not inspected and passed as fit for human food by a duly authorized inspector of the United States Department of Agriculture and were not marked, stamped or branded as having been so inspected and passed.

The appellant was engaged in business as a wholesale dealer in meats in the city of New York. On June 6, 1933, he shipped by truck from his place of business to Isaac Gellis, Inc., in Manhattan, fourteen sealed barrels containing 1,400 pieces of meat (known as navel pieces), weighing 5,092 pounds. Upon the arrival of the fourteen barrels of meat, the shipment was inspected and it was found that the barrels had affixed thereto United States domestic meat labels reading “ Market Inspection No. 2. The meat or meat food product contained herein has been United States inspected and passed by Department of Agriculture. Bronx Meat Company, 463 Westchester Avenue, Bronx, New York. Domestic Meat Label,” and that they also bore a United States inspection stamp reading “ Market No. 2. Inspected and passed. U. S.”

The barrels were opened and it was found that they contained thirty pieces of meat which were not marked with an inspection mark. The People produced no other testimony of importance.

The defendant produced his shipping clerk who testified in substance that on June 5th he received an order to prepare the meat for Isaac Gellis, Inc.; that the meat in question was in the kosher section of the cooler under seal; that the defendant had facilities for United States market inspection on the premises; that he called the inspector at the government office in the Westchester market and told him he bad plates of beef to be inspected as he wanted to prepare fourteen barrels of meat; that the inspector came to the plant; that a rabbi opened the seal on the cooler; that he went in the cooler; that the plates of meat were hanging on hooks; that he lifted each plate for the inspector to see the original slaughter house markings on the meat, that is, the markings showing government inspection at the slaughter house; that the original slaughter house brand was on each plate; that the inspector gave him the market No. 2 brand, a brand prescribed by the Department of Agriculture and used only on meat subject to market inspection in the city of New York; that in the presence of the inspector he branded every plate, every cut of meat; that he branded all the meat that was in the kosher section; that the meat, after being cut, was shipped to Isaac Gellis, Inc.; that there was no other meat that went into the shipment to Isaac Gellis, Inc.; that after the meat had been cut up and when the shipment was ready for packing in barrels, he called the meat inspector and the meat inspector supervised the packing of the barrels and issued domestic meat labels, then sealed them and shipped them out; that there was no meat in the barrels that was not inspected and passed on June 5th, and no meat in the barrels that was not branded on June 5th; that he got the labels for the containers from the government inspector in charge at the time.

The defendant also called the United States government meat inspector, Huddleston, who, on June 5th, examined the meat in the kosher section of defendant’s cooler. He testified that he inspected about seventy hooks or plates of meat so he could read the brand from the slaughter house; that he supervised the branding, the application of the market No. 2 brand; that he inspected all the plates there were in the kosher section; that they were all sound and had the original slaughter house stamp on; that the market brand is a brass stamp; that it prints the market brand in purple ink; that he was not there when the meat was shipped or put in barrels; that that was bis last day in Westchester market and he was not there on June 6th. Inspector Rafferty testified that no particular inspector was assigned to the premises of the Bronx Meat Company, that they are changed from time to time; that at all times two inspectors are assigned to the Westchester market. It, therefore, appears that the fact that Huddleston did not supervise the packing on June 6th is no indication that the testimony of the shipping clerk as to that inspection is untrue.

There is no contention that the thirty pieces of meat found in the barrels and claimed to have lacked a proper market brand were in any particular unfit for human consumption. In fact, the inspectors who examined the meat and testified for the People admitted that the meat was sound. The conviction must stand, if at all, upon the fact that there was found in the barrels at the Gellis establishment thirty pieces of meat upon which no market inspection brand could be identified.

Section 172 of the Sanitary Code (Code of Ordinances of City of New York, ch. 20, art. 9) provides as follows:

“ § 172. Sale of the carcasses of certain animals and dressed birds, poultry and fowl restricted. No carcasses or parts of the carcasses of * * * steers * * * shall be brought into the city of New York or held, kept, offered for sale or sold for human food therein until they shall, respectively, have been inspected and passed as fit for human food by a duly authorized inspection of the United States Department of Agriculture, and shall have been marked, stamped or branded as having been so inspected and passed. Provided * * * shall not apply to the carcasses * * * to which are attached * * * the lungs, the liver * * (Adopted by the Board of Health, June 28, 1917, amended August 10, 1926, June 5, 1928, and further amended April 1, 1930.)

Rules for meat inspection are prescribed by regulations adopted by the Secretary of Agriculture of the United States pursuant to the Meat Inspection Act, sections 1-21 (34 Stat. 674, 1260; United States Code Ann. tit. 21, ch. 4, §§ 71-91). Defendant’s establishment, being one at which market inspection, as provided for under those regulations, is maintained, the regulations in so far as they provide for market inspection, are necessary to be considered in determining what constitutes a duly authorized inspection of the United States Department of Agriculture,” and whether the thirty pieces of meat in question had been marked, stamped or branded as having been so inspected and passed.”

Regulation 19 of the Regulations Governing the Meat Inspection of the United States Department of Agriculture provides:

Section 1, Paragraph 1. Market inspection may be established to provide for the interstate transportation or export, from public markets, and other places, of portions of inspected and passed meat and products which, when cut or otherwise removed from a marked carcass, part, or container, do not show the inspection legend. Each city in which market inspection is established shall be assigned an official number by the chief of bureau, and all articles transported under such inspection shall bear the inspection legend and the official number of the city.
“ Section 1, Paragraph 2. * * *
Section 2. Unmarked portions cut from a marked carcass or part or removed from a marked container, under market inspection, for interstate transportation or for export, shall be inspected by a bureau employee at the time they are so cut or removed, and, if found to be sound, healthful, wholesome, and fit for human food, shall be marked with the inspection legend. Whenever practicable, the brand shall be applied to the meat itself. "When this cannot be done, the container thereof shall be marked, for interstate transportation, as required by Regulation 16, or, for export, as required by Regulation 24.”

The United States Department of Agriculture maintains no inspection service for meat not intended for interstate transportation or for export, except that under section 1, paragraph 1, of regulation 18, it is provided that All meat and products, whether fresh or cured, even though previously inspected and passed, shall be reinspected by bureau employees as often as may be necessary, in order to ascertain whether the same are sound, healthful, wholesome, and fit for human food at the time the same leave official establishments, * *

Hence, in providing, by section 172 of the Sanitary Code, for “a duly authorized inspection of the United States Department of Agriculture,” there must have been intended that form of inspection and only that form required in case of meat prepared for interstate transportation or export, and such reinspection as is provided for under the Federal regulations. A municipal act could not impose upon Federal inspectors duties not prescribed by the Federal act and the regulations adopted pursuant thereto.

In order to sustain the conviction of defendant, it must appear, beyond a reasonable doubt, that the thirty pieces of meat had not been inspected and passed as fit for human food by a duly authorized inspection of the United States Department of Agriculture,” and were not marked, stamped or branded as having been so inspected and passed.”

There is nothing in the Federal regulations which requires inspection at the time the meat is packed for shipment except for the purpose of determining that meat previously inspected and passed is still fit for human consumption and upon such reinspection there is no requirement that meat previously passed and marked shall be remarked. The reinspection as testified to on behalf of defendant and not disputed does show an intent on the part of the defendant to take advantage of the reinspection service. The fact that the containers bore the market No. 2 legend further evidences the fact of the reinspection though it does not go to the extent of affording the required proof of inspection for the reason that it is undisputed that the pieces in question were of a size to make it practicable to apply the brand to the meat itself.

Since the Federal regulations do not require that the meat shall be inspected and marked at the time it is packed for shipment, but rather when it is cut from a marked portion, if these pieces of meat were marked when inspected on June 5th, that is all that was required to bring them within the class of meat permitted to be had, kept and offered for sale. Upon that question we have the positive testimony of the shipping clerk, supported in the main by the testimony of the United States inspector who made the inspection, to the effect that every cut of meat in the particular section of the cooler was inspected, passed and marked with the market No. 2 brand, and the further testimony of the shipping clerk that no other meat went into the shipment. There is testimony that after the meat was so branded, it was cut, boned and trimmed with the resultant possibility, admitted by the United States inspector, Bafferty, who testified for the People, that in boning and trimming a few pieces might become mussed up so that the brand would not be recognizable. With no requirement for remarking upon reinspection, and no requirement for reinspection except when necessary to ascertain that the meat was still fit for human consumption, pieces of meat, once inspected and marked, were still entitled to be had, kept and offered for sale despite obliteration of the marks. If there is competent and sufficient proof to establish beyond a reasonable doubt that they were not inspected and passed pieces of meat and that they had never been marked as such, then the conviction of defendant may stand, otherwise not.

The only proof offered by the People is to the effect that when received at the Gellis establishment these thirty pieces out of a total of 1,400 did not contain identifiable inspection legends. That they did not then contain identifiable inspection legends does not raise a presumption that they were absent when inspected and passed. (Corbin & Co. v. United States, 181 Fed. Rep. 296; Jones on Evidence [2d ed.], § 58, note 2, and cases cited at end of note.)

Even if the proof offered by the People were to be deemed sufficient to raise a presumption that the pieces of meat had never been marked, the positive testimony as to inspection, passing)and marking and as to the possibility of obliteration of marks offered by the defendant is sufficient to overcome that presumption and to make it impossible for the court to say, beyond a reasonable doubt, that the pieces had not been inspected, passed and marked. No proof whatever was offered upon the part of the People to establish that the meat had not been inspected and passed.

There is here nothing in the quality of the meat to raise a presumption of intent to violate the statute or to afford a motive therefor. There is evidence of intent to comply with the statute in the calling of two inspectors on succeeding days to examine the meat. To find that the meat was not inspected and passed and was unmarked involves the necessity of finding that one or both of the Federal inspectors failed to perform his duty. There is, of course, a contrary presumption.

The judgment should be reversed, and the information dismissed.

Crane, Lehman and Loughran, JJ., concur; Pound, Ch. J., O’Brien and Crouch, JJ., dissent.

Judgment reversed, etc.


author: Per Curiam.

text:
    Elizabeth C. Muller, Appellant and Respondent, v. Emil A. Muller, Respondent and Appellant.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      John L. Class for plaintiff, appellant and respondent.
    This being an action in equity for the specific performance of a contract providing for more than the mere payment of money, the trial court properly awarded judgment for the installments due after the date of the complaint, and properly directed payments in the future. (McGean v. Parsons, 150 App. Div. 208; Kilbourne v. Board of Supervisors, 137 N. Y. 170; De Mille Co. v. Casey, 115 Misc. Rep. 646; Greenleaf v. Blakeman, 40 App. Div. 371; 166 N. Y. 627; Bullock v. Bullock, 134 Misc. Rep. 250; 227 App. Div. 714.)

      David S. Romanov, Edward Nyer, Jacob Nass and Edward T. Beldegreen for defendant, respondent and appellant.
    The trial court improperly permitted a recovery of installments due after the date of the complaint, and improperly directed payments in the future. (Werner v. Werner, 169 App. Div. 9; Bauchle v. Bauchle, 185 App. Div. 590; Ga Nun v. Palmer, 202 N. Y. 483; McGean v. Parsons, 150 App. Div. 208.)
   Per Curiam.

In so far as the decree herein gives judgment for the plaintiff against the defendant in the sum of $2,118, which sum comprises the balance due to the plaintiff from the defendant, with interest thereon, up to and including the 5th day of February, 1934, and directs that the plaintiff have execution therefor, it is affirmed.

The decree, as modified by the Appellate Division, is further modified by striking out that provision which directs the defendant to pay to the plaintiff at the office of her attorney $200 per month, commencing on the 27th day of March, 1934. Specific performance is not the appropriate remedy for the collection of money. As these amounts come due, if they are not paid, the plaintiff has her action at law.

We need not at this time determine the duty of the plaintiff to support her son under the terms of the agreement as it is not now in issue.

The judgment should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgment accordingly.