State Board of Pharmacy, Appellant, v. Asa Malkin, Respondent

State Board of Pharmacy, Appellant, v. Asa Malkin, Respondent. Second Department, April 22, 1910. Public health — drugs — sale Of volatile compound not up to standard — conflict of evidence. A penalty should not be imposed for the sale of a volatile pharmaceutical preparation which is not up to the standard, if it be shown that it was compounded according to the pharmacopoeia, and that the losses in the proportions of the mixture took place subsequently by the evaporation of the volatile elements. Where in an action to recover penalty for the.sale of camphorated oil containing but fourteen per cent of camphor in violation of the Public Health Law, the defendant's proof tends to show that .the article in question was correctly compounded a few weeks before its salé, and plaintiff’s proof tends to show that there could have been no appreciable loss by volatilization of the camphor in so short a time, a question of falct is presented to the jury and their-verdict will not be disturbed,. ' . Appeal by the plaintiff, the State, Board of Pharmacy, from a judgment of .the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 17th day of December, 1909, dismissing the complaint upon the merits. Jerome Steiner and Joseph. H. Kohan, for the appellant. Robert S. Conklin, for the respondent. [MAJORITY — Carr, J.:] Carr, J.: The .plaintiff sued to recover from the defendant, who owned a pharmacy in the borough of Brooklyn, a penalty for a violation of the Public Health Law (Consol. -Laws, chap. 45; Laws of 19.09, chap. 49). ' Section 235 of that statute provides as follows: “ 1. Unless otherwise prescribed for, or specified by the customer, all pharmaceutical preparations, sold or .dispensed in a pharmacy, dispensary, store or place, shall be of the standard strength, quality and piurity, established bv the latest edition of -the United States pharmacopoeia.” The defendant’s clerk sold to an inspector of the. plaintiff a small quantity of camphorated oil. A chemical analysis of the stuff so sold showed that it. contained but fourteen and twenty-seven one-hundredths per centum of camphor.. The standard, as shown by the pharmacopoeia, is, twenty parts of camphor to eighty parts of cottonseed oil, or, in other words, twenty per cent of camphor to eighty per cent of' oil. The. defendant offered proof to show that the .article had been .compounded but a few weeks before the sale, and that the formula prescribed by the pharmacopoeia.had been followed, in the compounding. The loss in the percentage of camphor was sought to be accounted for by proof that camphor was a volatile substance which would ‘continue to evaporate to some degree from the opening of the bottle in which the mixture was held, as .sales were" made from time to time, and which were made with great frequency. The court found judgment, for the defendant. . This case is practically the same as that before the Appellate Term in State Board of Pharmacy v. Bronson (113 N. Y. Supp. 490). There the learned court held that, under this statute, where the pharmaceutical preparation in question is volatile in nature, a penalty should not he imposed where it is shown that the preparation was actually compounded according to the standard of the pharmacopoeia, and a loss in the proportions of the mixture took place subsequently, in the partial evaporation of one or more of the volatile elements. This is a reasonable rule, if it be kept within reasonable bounds. The object of the statute is to keep pharmaceutical preparations, at the time of their sale, up to a standard of “ strength, quality and purity.” The efficiency of the preparation may depend upon the proportions of the elements combined. If some of these elements are volatile, there may be some loss in their proportions even in a very short time. Where that loss is insubstantial, no just complaint can be made. At the same time the loss in one element may so increase the relative strength of the other elements as to impair seriously the purpose for which the preparation is intended to be used, in which case it should not be enough to show that a preparation, sold months or years after its original compounding, complied with the law when compounded, although it did not comply with the law when it was sold. The statute looks rather to the time of the sale, for it was framed for the protection of the public in the use of the article sold. A pharmaceutical preparation may be so stale as to be comparatively useless. We do not feel justified, in the case at bar, in interfering with the finding of fact made by the trial court. According to the defendant's proof, the article in question was compounded correctly a few weeks before its sale, and, according to the plaintiff’s proof, there could have_ been no appreciable loss by volatilization of the camphor in so short a time. If so, then either the analysis of the plaintiff was incorrect or the. testimony of the defendant's witness was untrue, and there was a question of fact to be determined upon conflicting evidence. On the record before us, we feel that we should not interfere with the determination of this question made by the trial court. The judgment of the Municipal Court should be affirmed, with costs. Hirsohberg, P. J., Burr, Thomas and Bich, JJ., concurred. Judgment of the Municipal Court affirmed, with costs. See Laws of 1900, chap. 667 (amdg. Gen. Laws, chap. 25 [Laws of 1893, chap. 661], §§ 197, 201); revised into Consol. Laws, chap. 45 (Laws of 1909, chap. 49), §§ 235, 239.— [Rep.