
    The City of New York, Respondent, v. Julius Frank, Appellant.
    Second Department,
    March 10, 1911.
    Mew York city—weights and measures —false scales — failure to prove violation of ordinance.
    Where in an action to recover a penalty pursuant to section 886 of the Code of Ordinances of Mew York city, providing that “if any person shall use,” in weighing, any scale heam which shall not conform to the standard as prescribed in preceding sections, “ or shall use” in weighing any weight or scale beam which shall be out of order, he shall forfeit twenty-five dollars, the complaint alleges that a violation of the ordinance occurred March 23, 1910, evidence given by an inspector that scales found in defendant’s store on the 28th day of March, 1910, were out of balance is insufficient to sustain a judgment for the plaintiff.
    
      It seems, that the ordinance does not provide that there shall be any liability for the mere possession of incorrect scales.
    Appeal by the defendant, Julius Frank, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the, plain tiff, rendered on the Ith day of July, 1910, for the sum of twenty-five dollars.
    
      Mark Rudich,, for the appellant.
    
      Herman Stiefel and Harry S. Sullivan, for the respondent.
   Hirsohberg, J.:

The plaintiff has recovered a judgment for a penalty of twenty • five dollars, pursuant to section 386 of the Code of Ordinances of the city of Mew York. That section relates to violations of the provisions of sections 38,3 and 385 of the Code of Ordinances, which establish the standard of scales and weights to be used in the city of Mew York by persons, firms and corporations engaged in buying and selling. The section in question provides as follows: “ If any person shall use, in The City of Mew York, in weighing or measuring, as aforesaid, any weight, measure, scale beam, patent balance, steelyard or other instrument which shall not conform to such standard, or shall use in weighing aforesaid, any scale beam, patent balance, steelyard or other instrument, which shall be out of order or incorrect, or which shall not balance, he, she or they shall forfeit and j)ay for every such offense the sum of twenty-five dollars.” The only question presented on the appeal is whether the evidence submitted was sufficient to justify a judgment for the penalty provided by this section.

The only evidence given on the trial was that of an inspector of weights and measures for the city of Mew York. The violation charged in the summons and complaint was stated to have occurred on March 23, 1910, and the evidence given by the inspector was confined to a visit which he stated he made to the defendant’s premises on the 28th of March, 1910. He testified that the defendant was then conducting a grocery store and that he, the witness, found in the back of the store a thirty-pound spring balance scale which was one ounce out of balance, and that a one-ounce weight was hanging by the side of the scale. There was another scale in the store, but no evidence was given as to its condition. The, scale in question was not in use while the inspector was there, nor did he give any testimony indicating that it had ever been' in use. The defendant was present and his attention was drawn by the inspector to the fact that the scale was out of balance, to which the defendant replied that he always gave good weight.

The respondent’s counsel have been unable apparently to find any authority in this State to the effect that this evidence is sufficient to justify a finding that the scale in question had been used by the defendant while it was out of order. Certainly the proof is insufficient to establish such a use five days before the visit of the inspector, or even to establish that the scale on that prior day was out of order. The cases in which the selling of liquor without a license has been held to be sufficiently proven by evidence of the maintenance of a store or bar, with clerks or barkeepers, are distinguishable ; and if it was intended by the ordinance that liability should attach to the mere possession of a scale which was out of order or incorrect, no reason can be suggested why the ordinance should not have so stated instead of confining the liability to the actual use. While the strict rule of evidence applicable to a criminal indictment is not required, the burden, nevertheless, is on the plaintiff and the proof to establish the violation should preponderate with accuracy and precision.

The judgment should be reversed.

. Jenks, P. J., Thomas and Bich, JJ., concurred; Oabb, J., concurred in result.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  