
    The People of the State of New York, Respondent, v. Charles Leder, Appellant.
   Judgment and order affirmed. No opinion.

Present — Martin, P. J., O’Malley, Townley, Dore and Cohn, JJ.; Martin, P. J., and Dore, J., dissent; dissenting opinion by Martin, P. J.

Martin, P. J. (dissenting).

The finding that the non-kosher piece of liver was exposed for sale by the defendant with intent to defraud is against the weight of the evidence. Concededly, the liver was the product of the Lehmann Packing Company. That company sold both kosher and non-kosher products, which were kept in the same department on tiers of hooks six inches apart, the kosher above the non-kosher. Concededly, also, the defendant, on the 26th of April, 1938, purchased a piece of liver from the Lehmann Packing Company, which was billed to him as kosher liver. The probabilities are that a mistake was made in delivering non-kosher liver to the defendant, notwithstanding he had requested and paid for kosher liver. An inspection of the defendant’s store disclosed that all his stock in trade, with the exception of the single piece of liver involved, was kosher.

The People’s case rests wholly upon the inference that the defendant did purchase and receive a piece of kosher liver from the Lehmann Packing Company and also purchased a piece of non-kosher liver, originating from Lehmann Packing Company, from some third party. There are no facts to support such an inference.

The defendant’s guilt has not been established. The judgment should be reversed and the information dismissed.

Dore, J., concurs with Martin, P. J.  