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

• Decision Date: 20 August 1958
• Citation: 177 N.Y.S.2d 361,13 Misc.2d 497
• Parties: 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
• Court: New York Magistrate Court

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.

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 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 '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 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 108 hours after pasteurization. The apparent and undisputed purpose of these regulations is to protect the health of the residents of the City of New York by banning the sale of stale milk or cream. The principal attack leveled against these regulations is that they do not in fact serve any health purpose. The argument is made that with advances in methods of refrigeration milk and cream may be wholesome even if it is kept beyond the period permitted by the regulations. The argument proceeds that the quality of milk is not determined solely by its age but is dependent also upon the conditions under which it is kept. The proper judicial approach to this problem is set forth in Defiance Milk Products Co. v. Du Mond, 309 N.Y. 537, 540, 132 N.E.2d 829, 830:

'The applicable rules of law are well known. Every legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support for its provisions * * *. If any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends. * * * Questions as to wisdom, need or appropriateness are for the legislature * * *. Courts strike down statutes only as a last resort * * *, and only when unconstitutionality is shown beyond a reasonable doubt * * *.'

The rule was tersely stated as follows by the United States Supreme Court in Carolene Products Co. v. United States, 323 U.S. 18, 31-32, 65 S.Ct. 1, 8, 89 L.Ed. 15:

'* * * the methods which it [the Board of Health] employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat.'

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