#### The City of New York, Respondent, *v.*Oscar Compton, Appellant.

(Supreme Court, Appellate Term,

July, 1900.)

Coal — Construction of L. 1897, ch. 174, § 3, requiring an original bill of lading, showing the weight, to be delivered with an entire cargo of coal — Penalty, when not incurred.

Section 3 of chapter 174 of the Laws of 1897 requiring that, in cities of the first and second class, where coal is delivered by the entire cargo, direct from the vessels containing the same, to one destination, and is accepted by the purchaser on the original bill of lading as proof of weight, the party making the delivery must give the purchaser one of the original bills of lading issued by the party who loaded the coal into the vessel from which it was delivered and which bill of lading must show the number of pounds, does not apply where the purchaser did not accept the entire cargo on the bill of lading as proof of weight but weighed it as he received it and relied on his own estimate of weight.

The section of the statute is highly penal and in order to justify the imposition of the penalty, fixed for not delivering an original bill of lading, the violation must be established precisely.

Appeal from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

A. Campbell, for appellant.

John Whalen, Corporation Counsel, for respondent.

*Per Curiam.*

This is an action to recover a penalty under the third section of an act, of somewhat unusual character, known as *206chapter 174 of the Laws of 1897. The section provides that it shall be unlawful for any person, firm or corporation delivering coal in cities of the first and second class to make such delivery without at the same time furnishing to the purchaser a ticket indicating in pounds the amount of coal contained in any cart, wagon or other vehicle used in such delivery. Then follows the provision of the section which the defendant is accused of violating, which reads as follows: “ The foregoing provisions of this section shall not apply to coal delivered by the entire cargo direct from the vessels containing the same, to one destination and accepted by the purchaser on the original bill of lading as proof of weight; but with every such delivery of an entire cargo of coal in any city of t-he first and second class, there shall be delivered to the purchaser thereof one of the original bills of lading issued by the person, firm or corporation by whom the coal was loaded into the vessel from which such coal is delivered to the purchaser of the entire cargo thereof, on each of which bills of lading there shall be in ink or other indelible substance distinctly expressed, the date and place of loading such cargo and the number of pounds contained therein.” For the violation of this section a penalty not exceeding fifty dollars may be imposed. The section, and indeed the whole act, is highly penal, and in order to justify the imposition of a penalty under it, the violation must be precisely established. The charge against the defendant is that he failed to deliver an original bill of lading to one Charles A. Fuller, the manager of the Hotel Endicott in the-city of New York, .to whom he sold and delivered the entire cargo of coal contained in a boat called the *Clara.*Fuller testified that he bought the cargo of coal from some unidentified person whom he described as the defendant’s *“*young man — his representative.” Just what the transaction was with this young man does not clearly appear. It does appear, however, that before the sale had been consummated, or any delivery. made, this defendant both verbally and in writing notified Fuller that he could not deliver the whole cargo," but that he could deliver 100 or 150 tons out of the cargo, which amounted in all to some 250 tons or more. He offered to have the boat towed to Seventy-ninth street, so that Fuller could take off his 100 or 150 tons, and then said “ we will take your weights and averages, or you can take the weight of balance as weighed by them.” The word *“*them ” referred to other parties who wanted this coal. Fuller accepted this proposi*207tion, but did not keep faith with the defendant, because, after the boat had been towed to Seventy-ninth street, without the knowledge of the defendant, he took, not the 100 or 150 tons agreed upon, but the whole cargo. He did, however, accept the defendant’s suggestion as to the method of ascertaining the amount of coal he received, for, as he testifies, he weighed some of it, and averaged the rest up, kept one return of weights, and sent the other to the defendant. On this state of facts the judgment imposing a penalty on defendant cannot be sustained. Passing by the question whether the defendant can be said to have *“*delivered ” the whole cargo, whén Puller took it in opposition to the defendants injunction that he should not take more than 100 or 150 tons, we come to an examination of what the statute requires. It provides that an original bill of lading shall accompany *“*every such delivery of an entire cargo of coal.” What is meant by every “ such delivery ” is clearly shown by the preceding sentence. It meant the delivery of an entire cargo, from the vessel containing the same, to one destination and “ accepted by the purchaser on the original bill of lading as proof of weight.” That is to say, if a purchaser buys a cargo of coal in the belief that it contains a certain number of tons or pounds and relies on the bill of lading as proof of the weight, then he is entitled to receive the bill of lading, it being the evidence of weight on which he has relied, and upon the basis of which the bargain was made. The purchaser in the present case did not accept the cargo on the original bill of lading as proof of weight, but weighed the coal as he received it. To such a transaction neither the letter nor the spirit of the statute applies. The plaintiff wholly failed to make out a case justifying the imposition of a penalty upon this defendant and the judgment must be reversed, with costs.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed, with costs.