The People of the State of New York on the Complaint of Alexander W. Johnson, Respondent, v. A. J. Capone Co., Inc., Appellant

The People of the State of New York on the Complaint of Alexander W. Johnson, Respondent, v. A. J. Capone Co., Inc., Appellant. First Department, May 27, 1938. Samuel Silver, for the appellant. Leonard M. Wallstein, Jr., of counsel [James Hall Prothero with him on the brief; William C. Chanler, Corporation Counsel], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. The evidence conclusively established that the adulterated food, consisting of olive oil, was not on the defendant’s premises for the purpose of sale. Under these circumstances any statutory presumption that may exist that the food was held for sale was rebutted and it was accordingly error to hold that the defendant was guilty of the violation of section 139 of the Sanitary Code. (People v. Timmerman, 79 App. Div. 565; People v. Foremost Butter and Egg Corp., 239 id. 773; People v. Woolworth Co., 250 id. 864; People v. Woolworth Co., 246 id. 838.) The judgment of conviction should be reversed, the information dismissed, and the fine remitted. Present — Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ. Judgment unanimously reversed, the information dismissed, and the fine remitted.