People v. Big Apple Supermarket Inc.
| Decision Date | 13 November 1967 |
| Citation | 55 Misc.2d 139,284 N.Y.S.2d 970 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. BIG APPLE SUPERMARKET INC., Defendant. The PEOPLE of the State of New York, Plaintiff, v. ONE ELEVEN SOUTH ST. #2 INC. d/b/a Food Town, Defendant. |
| Court | New York District Court |
To paraphrase a fine old Greek adage, 'Law is the gift of men but living under law is the course of wisdom.' We will, in due course, determine the manner in which this so prescient suggestion applies to the cause at bar and whether or not an historic aphorism is to be redressed so as to read, 'let the seller beware.'
Few things seem so perennially present in our lives--so free of care in their packaged neatness--so unlikely to shape destiny--as the butter on the supermarket shelf. But now, from behind this benignly impressive facade of cool gentility emerges a problem for this court to consider, namely,
When is a pound of butter to be a pound of butter to be a pound of butter?
Is butter to be proper poundage at the plant of the packer (who cuts and packages)--at the warehouse of the dealer (who purveys to the retailer)--or at the store of the retailer (who offers it for sale to the ultimate consumer)? Must the promise of a pound purchased bear a reasonable resemblance to the reality, and, if it does not, where is the repository of responsibility under law? May the retailer, so to speak, 'pass the butter' to the packer or the dealer and if not, will it necessarily lead to 'apocalypse in the supermarket'?
On August 23rd, 1966, a meeting was called by the County Sealer (Commissioner of Weights and Measures) of Nassau County, which was attended by representatives of the defendants as well as by those of virtually every other major supermarket in the county of Nassau. During the course of that gathering, which was presided over by one, Robert Williams, the County Sealer, all who attended signed an attendance sheet (People's Exhibit I), indicating the firm he represented and his official relationship thereto. Mr. Irwin Tantleff attended as president of the defendant, 111 South Street #2 Inc., d/b/a Food Town and signed the roster, 'Pres. Food Town-Oyster Bay.' Mr. Irving Cohen signed as, 'Dairy Big Apple,' in behalf of the defendant, Big Apple Supermarket, Inc. The requests to attend were contained in a letter from the County Sealer dated August 16, 1966, addressed to various stores (People's Exhibit IV).
In a decision of this nature, the court would not ordinarily 'marshall the testimony' at length, but in its judgment, doing so, finds ample warrant in the somewhat general import of the questions being determined.
The first witness in behalf of the People during this consolidated trial was Irving Cohen, who testified in sum that he was employed by the defendant Big Apple as a supervisor and that he recalled having attended a meeting at the Nassau County Department of Weights and Measures in 1966, during the course of which he was advised about shortweight butter in Nassau County, and that he relayed this information to his employer.
The People then called Irwin Tantleff who identified himself as President of the defendant 111 South Street #2 Inc., d/b/a Food Town, Oyster Bay. He testified that he attended the same meeting and that there was an inference by the spokesmen for the County that they were going to concentrate at the retail store level on the subject of shortweight butter. He stated that he was apprised that the reasons for shortweight were shrinkage and the practice of the packer in cutting butter on the pound. He further testified that the defendant Food Town is an independent store, not a chain, and that it was suggested he make certain that the butter in the store be a full pound. He continued, that he and the others present, were advised that the shrinkage in the butter was not caused by the packer, but rather by protracted storage at the retail level before the butter was exposed for sale with a consequent loss of moisture. He added that he dated his packages of butter and had not retained any for a period of more than eight days immediately prior to the time he received the summons herein. He stated that he called Royal Dairy, his distributor, and advised them of the substance of the meeting and told them to make certain that the butter was right, but that later events indicated that things did not turn out quite that way. Mr. Tantleff went on to say that he was present when the Nassau County inspectors arrived on September 20, 1966, and that there was a scale located between the produce department and the self-service cold cut counter, but that the inspectors advised him there should be a separate scale for customers to use. He conceded that the butter which the inspectors were weighing on September 20, 1966, was obviously being offered for sale.
August W. Weidner, Jr., Assistant Nassau County Sealer, on August 16, 1966, testified that he was present when the signatures were affixed to People's Exhibit #1, and stated during the course of his voir dire that those present were asked, in substance, 'Would you please sign the attendance roster?'. Mr. Weidner said that Mr. Williams, the County Sealer, addressed the meeting, speaking from prepared remarks, and advised those present that between January 1, 1966, up to the date of the meeting itself, his inspectors had checked over thirty-five thousand pounds of butter and found in excess of ten per cent thereof shortweight--that his inspectors had visited butter packers and wholesalers and shortweights were being caused by the retailers' representatives in the handling of the butter at the retail stores. The County Sealer advised those present that he would allow them until September 1, 1966, to clean house or the alternative would be that a program of prosecution would be accelerated. This witness also addressed the meeting briefly and was followed by the remarks of two representatives from Suffolk County, namely, the Suffolk Sealer and one of his senior inspectors. Mr. Weidner, during his cross-examination stated that it was the opinion of the County Sealer that shrinkage or shortweight in butter found on retailer's shelves was being caused between the time the butter was packaged and its use by the retailer--that the packer places a code on the butter wrapper by perforation which indicates the date of cutting of the butter and its wrapping, and that this was the means by which his department inspectors ascertain that butter was not being exposed for sale until several weeks after cutting and packaging. He added that no shortweights were found at the plant of the packer by his inspectors.
(To put it somewhat euphemistically a total of 343 underweight packages is hardly de minimus.)
The witness Knowlton further testified that while on the premises of the defendant, Food Town, he saw no customer's scale at any place where food was available for purchase, although he did see a scale a short distance from the room where meat was prepared for sale. He added, that a scale was brought from another room from behind a door where no customers were permitted but that there was nothing indicating it to be a customer's scale.
On the subject of the scale, there was further testimony to the effect that there was a scale in the produce department. (See diagram People's Exhibit V.)
Mr. Knowlton was cross-examined as to the manner in which the weighing of the butter was accomplished and with respect to whether or not the...
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State v. Strong Oil Co., Inc.
...to the intention of the lawmaker, as indicated by its terms and purposes." (See: Cotheal v. Brouwer, supra; People v. Big Apple Supermarket, Inc., 55 Misc.2d 139, 284 N.Y.S.2d 970.) In addition, the statute must be construed as a whole and its various sections must be considered together an......
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