People v. Enders
| Decision Date | 07 February 1963 |
| Citation | 38 Misc.2d 746,237 N.Y.S.2d 879 |
| Parties | The PEOPLE of the State of New York, Plaintiffs, v. Irwin ENDERS and Ruben Schneider, Defendants. |
| Court | New York City Court |
Frank S. Hogan, Dist. Atty., New York County (Patrick W. McGinley, New York City, of counsel), for the People.
Cohn & Glickstein, New York City (Sol Bogen, New York City, of counsel), for defendant Irwin Enders.
Samuel Morganroth, New York City, for defendant Ruben Schneider.
This case involves the hamburger * * * that ubiquitous meat dish, the piece de resistance of every roadside eatery (H. L. Mencken, The American Language, 4th ed. [38 Misc.2d 747] pp. 155, 220). Imported from northern Germany, hamburger is nothing more than finely ground beef served with seasoning, in small patties, either grilled or fried. (Craigie, Dictionary of American English, Vol. 2, p. 1211). Though this definition is very close to the official definitions given by the United States and New York State Departments of Agriculture (post), untold numbers of hamburger aficionados insist that this definition is too limited in both its scope and content.
Be that as it may, the hamburger originated in the German city of the same name, and hence its toponymic appellation (Oxford English Dictionary--Supplement, 1933). There, in North Germany, the stalwart natives consumed it in the raw state, under the name of Steak Tartar, often garnished with raw onions. ('Why We Say', by Robert L. Morgan, 1953, p. 68). In Germany this chopped beef delicacy was known, not an hamburger, but as Deutsches (German) Beefsteak. (M. S. Italia, Deutsches Kochbuch p. 20). It acquired the name of hamburger only upon its arrival to these shores, where it has been widely accepted as a mainstay of our diet (Morgan 'Why We Say', ibid.), though as one wit has said, much has been lost in the translation. But whatever its history and etymology, hamburger has been known and recognized in this country since the latter part of the 19th century. It first appeared in print as 'hamburg steak' in the Boston Journal of 16 February 1884, 2/2, (Matthews, Dictionary of Americanisms). Craigie, (ibid.) says it was defined in 1892. George Ade, (1901) in his '40 Modern Fables', p. 285, and Irvin S. Cobb (1912) in his 'Back Home', p. 147, (two well-known American humorists albeit writers in a different genre), both mention 'hamburger' in haec verba. All the authorities cited above indicate that the various names given to this product, to wit, hamburg, hamburger, hamburg steak, hamburger steak, are all synonymous.
With such a history, it was inevitable that the 'hamburger' would find its way into a court of law (as distinguished from a Court of Equity and its 'clean hands' doctrine). And it was equally inevitable that some judge would be called upon to compose some learned tome on food, with hamburger in the stellar role.
Not that food is a subject completely foreign to the judiciary. The very word 'Coke,' (the name of that pre-eminent English jurist), was but another way of spelling 'Cook,' in ancient England; and cooks, (that is good cooks), were greatly honored for their art, as far back as the days of William the Conqueror (Encyclopaedia Britannica, 14th Ed. Vol. 6, pp. 367, 368), though few tourists in modern England today, would believe it.
Modern cookery, this same Encyclopaedia tells us, dates back to the Renaissance. And the greatest name in the literature of cookery and gastronomy is none other than Anthelme Brillat-Savarin, the French jurist and author of Physiologie du Gout (Encyclopaedia, ibid., Vol. 6, p. 367).
The English Judiciary, not to be outdone by their French brethren, proved their sensibilities to kitchen and palate, through one Thomas Walker, a police Magistrate of Lambeth who in 1835, produced a treatise on the art of cookery, (the Original) and inspired others to follow. (Encyclopaedia, ibid., Vol. 6, p. 367).
Modern gastronomists have always abjured Moliere's epigram, 'We eat to live, we do not live to eat.'
These modernists like La Rochefoucauld believe that 'eating intelligently is an art,' and like Vauvenargues believe that 'great thoughts come from the stomach,' (Encyclopaedia, ibid., Vol. 10, p. 56) which leads us to conjecture as to the size of the girth of those judges who propounded the Rule in Shelly's case, and the Rule Against Perpetuities.
Modern cooks and gastronomists, are men of many parts, physically and philosophically. The works of Brillat-Savarin and Thomas Walker, were no mere cookery books. They also contained a compound of observations and philosophy (Encyclopaedia, ibid., Vol. 6, p. 367). Witness the bold concepts of one cook: (Vol. 10, p. 58, Encyclopaedia ibid.).
Perhaps this experimentation can go too far. Frederick the Great, for instance, added champagne and mustard to his coffee to give it a stronger taste (Encylopaedia, ibid., Vol. 10, p. 57).
The modern Irish have done much better with their coffee.
How much, and to what degree, the defendants, in this case, were inspired by these lofty sentiments to experiment in the culinary arts, we do not know. Whether they sought to out-do Savarin and Escoffier, to become the Brahms, Beethoven and Bach of the modern kitchen or the George Gershwin of Gotham, we likewise do not know. Nor can we tell how much of their experimentation was inspired by the Muses or by Midas.
But what we do know is that they stand charged with processing, possessing and offering for sale hamburger which was adulterated and misbranded.
The facts in this case are as follows:
The defendant Schneider owned and operated a food store, commonly known as a super market. The defendant Enders was employed by him as a butcher. It was Enders' duty to prepare for its customers, the various meats, including chopped meats and hamburgers, sold in this establishment.
On January 17, 1962, during a routine inspection of the defendants' store, an inspector from the New York City Department of Markets, observed the defendant Enders adding some edible beef blood to a special two-pound order of hamburger to be prepared from chuck beef, for which a customer was waiting.
There were 2 one-gallon cans of edible beef blood in the room where Enders was working, (Peo. Ex. #1 and 2). From one of these cans (Peo. Ex. #1) Enders poured this blood to the hamburger, with the knowledge and consent of the co-defendant Schneider. When questioned, both defendants stated the beef blood was added only to the cheaper variety of hamburger 'to juice it up.'
The defendant Schneider sold various kinds of meat and meat products, among which were three grades of hamburger. The cheapest grade was made from beef trimmings and sold for 39cents a pound, (Peo. Ex. #4 and 5). The next grade was made from chuck beef and sold for 89cents a pound, (Peo. Ex. #3). We are not concerned with the third grade of hamburger, which is the best grade, and which is made from beef round. It was a preparation of the chopped chuck beef, (Peo. Ex. #3) that Enders was preparing at the time he was observed adding the beef blood. Hamburger is made by chopping or grinding fresh beef. Both the Federal and State definitions of hamburger (post) are substantially identical.
The beef blood, added to the meat involved, was non-deleterious, unadulterated and approved for human consumption by the United States Department of Agriculture. The use of such beef blood, per se, is not prohibited by either the Federal, State or City governments. Its use is approved in the preparation of certain meat products, such as bloodwurst (sec. Sec. 95:01(B), Health Code of the City of New York).
The facts further disclosed that there is no known method of determining how much blood is indigenous to any carcass or particular piece of meat, or how much blood, if any, may have been added. The amount of blood in any carcass varies among the carcasses of animals even from the same species and genus. Nor is there any uniformity in the distribution of blood in any one carcass, though generally, more blood will be found in the neck than in any other portion of its body.
Thus, with respect to the ground chuck, beef hamburger in question, (Peo. Ex. #3), selling for 89cents a pound as well as the two samples of 39cents hamburger (Peo. Ex. #4 and 5), seized by the inspector, there is no known method of determining how much blood was indigenous and how much blood had been added thereto. Additionally, these two exhibits, #4 and #5, were never analyzed and their actual contents are unknown.
The analysis of the chuck beef involved, however, disclosed a moisture content of 60.5% and a fat content of 22.5%. The People concede that these percentages are within the established norms.
The information filed against these defendants charges them both, with violations of the New York State Agricultural and Markets Law, a misdemeanor, in that they 'unlawfully did process, possess, sell, offer and expose for sale * * * ground meat, which was adulterated and misbranded, in that a substance had been added thereto and mixed therewith to make it appear better than it is and of greater value than its true value, and which ground meat fell below the standard of purity, quality and strength which it purported and was represented to possess.'
Section 199-a of the Agriculture and Markets Law prohibits the possession, processing, offering or exposing for sale any article of food which is adulterated or misbranded.
Section 200 of the same law defines adulteration of food, and Section 201 defines misbranding. The applicable portions of these sections state as follows:
' § 200...
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