
    The City of New York, Appellant, v. International Provision Company, Respondent.
    Seeond'Department,
    April 28, 1911.
    Weights and measures — false scale—penalty.
    In 'an action to recover a penalty for using an inaccurate scale giving short weights of goods sold, the intention or purpose of the defendant is immaterial. |
    A merchant is liable for the penalty where the dial of a scale facing the customer was inaccurate' to the customer’s disadvantage, although another dial facing the salesman was accurate.
    In an action by a city to recover the' penalty for using false scales it need' not show that the defendant in fact gave short weights to customers; it is sufficient that the scales ¡were inaccurate to the customer’s disadvantage.
    Appeal by the plaintiff, The City of New York, from a judgment, of the Municipal Court of the .city of New York, borough of Brooklyn; in favor of the defendant, rendered on the 9th day of January, 1911, dismissing the complaint at the close of the plaintiff’s [casein an action brought to recover a penalty:
    
      Martin H. Murphy and Herman Stiefel, for the appellant.
    
      Joseph B. Uniacke, for the respondent.
   Rich, J.:

The defendant, the International Provision Company, on the 1st day of July, 1910, was engaged in business as wholesale and retail dealers in provisions at No. 33 Degraw street in the borough of Brooklyn, j On that day an inspection of its weights and measures disclosed that three of its scales used in its bush ness were incorrect. Tile officer who made the inspection was the only witness called upon the trial. It appears from his evidence that two 300-pound scales used in defendant's, wholesale depart- • ment were each one-quarter of a pound fast—against the customer. The inaccuracy of one of these scales' was due to a faulty arrangement of caused by a piece of the mechanism, while in the other it was paper fitted in the pan. In the retail department a 24-pound scale having two dials, one facing the customer and the other the salesman, was also inaccurate. The face to the customer was two ounces fast. It is true that the register facing the salesman was accurate, hut this did not cure its defective, incorrect condition. The intention of the defendant in using this scale is immaterial. (City of New York v. Hewitt, 91 App. Div. 445.) It may have heen inno- ■ cent, or it may have been for the purpose of inducing .customers to think they were receiving a pound, when in fact the weight was but fourteen ounces. The purpose is immaterial; we have only to deal with the undisputed fact that the scale was incorrect.

' Upon the trial respondent’s counsel contended that it was incumbent upon the plaintiff to show that no allowance was made to the purchaser for the short weight, and the court in dismissing the complaint said: “It is positively established that this scale has been deficient in weight thus far, that is, not up to the standard; but here is a proposition by the defense which is rather a novel proposition. I do not know whether that difference in weight was allowed to each customer.” The defendant was not charged with cheating its customers, and the burden was not upon the plaintiff to show that short weights were not in fact given. The plaintiff was only required to show that the scales in use were incorrect, and this has been proven.

The judgment of the Municipal Court must be reversed and a new trial ordered; costs to abide the' event.

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

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