People on Complaint of Gayle v. Samuel Adler, Inc.

CourtNew York Magistrate Court
Citation177 N.Y.S.2d 361,13 Misc.2d 497
PartiesThe PEOPLE of the State of New York on the complaint of Jules M. GAYLE v. SAMUEL ADLER, INC., Defendant. The PEOPLE of the State of New York on the complaint of Irving FEUERSTEIN v. SAMUEL ADLER, INC., Defendant. City Magistrate's Court of City of New York, Municipal Term, Borough of Brooklyn
Decision Date20 August 1958

Page 361

177 N.Y.S.2d 361
13 Misc.2d 497
The PEOPLE of the State of New York on the complaint of Jules M. GAYLE
v.
SAMUEL ADLER, INC., Defendant.
The PEOPLE of the State of New York on the complaint of
Irving FEUERSTEIN
v.
SAMUEL ADLER, INC., Defendant.
City Magistrate's Court of City of New York, Municipal Term,
Borough of Brooklyn.
Aug. 20, 1958.

Page 363

Peter Campbell Brown, Corp. Counsel, New York City, by Joseph M. Callahan, Jr. and Elias Low, New York City, of counsel, for People of State of New York.

Samuel Rubin, New York City, for defendant.

Hays, Sklar and Herzberg, New York City, by Sydney C. Winton, New York City, of counsel, for Milk Industry Committee on Public Health, amicus curiae, in support of defendant's position.

DAVID L. MALBIN, City Magistrate.

The defendant was tried before me on two complaints charging violations of the milk dating regulations promulgated by the Commissioner of Health of the City of New York pursuant to the authority contained in Chapter 22 and Section 885 of the New York City Charter.

The first complaint charged the defendant with having in its possession for sale a quantity of milk in quart size containers improperly labeled, in that the day of the week on which distribution might begin was stated on the containers as a day [13 Misc.2d 498] more than 36 hours after pasteurization, in violation of Section 156, Regulation 155, Subdivision 4 of the Sanitary Code of the City of New York. The second complaint charged the defendant with having in its possession for the purpose of sale heavy cream in half pint containers, which were not labeled with respect to the date on which distribution might begin.

The evidence and concessions of the parties established that the defendant committed the acts set forth in the complaint. The additional fact pertinent to the legal questions hereinafter discussed was established that the milk was destined for distribution to automatic vending machines. Counsel for the defendant and for the amicus curiae have posed grave constitutional questions in asserting the validity of the regulations involved. The Court takes this occasion to express its appreciation to counsel for their skill and zeal in the presentation of their arguments.

Section 151, Regulation 154, provides in part as follows:

1. Each receptacle containing milk or milk products * * * brought into the City of New York or held, kept, offered for sale or sold therein, shall bear a label on which shall be clearly and legibly printed the nature of the product contained in said receptacle, the name of the operator of the place where said receptacle was filled, and the address of said place, together with any additional information required in the Sanitary Code and in these regulations governing milk and milk products * * *.

Section 154, Regulation 155, Subdivision 1c provides:

Page 364

'The time when distribution of the milk or cream indicated by the words 'for distribution after 3 A.M.' or 'for distribution after 6 A.M.' together with the day of the week, in the case of caps and single service containers, and with the date in the case of tags.'

Regulation 155, Subdivision 4 provides:

'The time when distribution may begin as indicated on the outer caps on bottles, the tags attached to cans and the labeling on single service containers of milk or cream shall not be more than 36 hours after pasteurization of such products.'

Regulation 51 provides in part as follows: 'nor shall it be lawful to have, keep, offer for sale, sell or deliver any milk * * * later than 54 hours or any cream * * * later than 73 hours after the date when distribution may begin as indicated on the single service container.'

Regulation 155, Subdivision 8 provides that the dating requirements 'shall not apply to one-third quart or [13 Misc.2d 499] one-half pint containers or bottles when such containers or bottles are dispensed through mechanically operated dispensing machines.'

These regulations comprise an integrated pattern designed to insure that milk will not be sold to the consumer more than 90 hours after pasteurization and cream more than...

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