
    The City of New York, Appellant, v. Abraham Gurowitz, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    December, 1912.)
    City of Hew York — Code of Ordinances, § 388 — sale — short weight — action for penalty.
    Where defendant conducting a delicatessen store in the city of Hew York sold a pound of butter which was immediately and in his presence reweighed and found to contain but fourteen and one-half ounces, he is guilty of a violation of section 388 of the Code of Ordinances; and in an action to recover the penalty prescribed a judgment in his favor will be reversed as against the weight of evidence.
    Appeal by plaintiff from a judgment of the Municipal Court, borough of Queens, rendered in favor of defendant.
    Archibald R. Watson, corporation counsel (Martin H. Murphy, of counsel), for appellant.
    Daniel W. Blumenthal, for respondent.
   Per Curiam.

The municipal ordinance in evidence;, among other things, provides:

“ Sec. 388. No person shall sell or offer for sale any commodity or article of merchandise in any market or in the public streets or in any other place in The City of New York, at or for a greater weight or measure than the true measure or weight thereof * * *. No person shall violate any of the provisions of this section under a penalty of one hundred dollars for each offense.”

Defendant, conducting a delicatessen store, in the borough of Queens, sold and delivered to one of two inspectors of the bureau of weights and measures a pound of butter, which, upon being immediately and in his presence reweighed, was found to contain but fourteen and one-half ounces.

The fact that the purchaser and her male companion were such inspectors, of itself, raised no presumption against the credibility of their testimony and there is no evidence showing interest or bias on the part of either of them.

The proofs are convincing and clearly preponderate as to the sale by short weight of the butter, and defendant’s violation of the ordinance in the short weight sale of the butter, especially, was seemingly so well established that the conclusion of the trial justice to the contrary was unreasonable and against the weight of evidence.

Present: Maddox, Blackmar and Putnam, JJ.

Judgment reversed and new trial ordered, with costs to abide event.  