Postby dognose » Wed Aug 06, 2014 4:46 am
WEIGHTED SILVER
Important Case Under New York Silver Law
Defendants Charged With Selling Candle Stick Marked "Sterling" and Filled With Pitch, Held for Trial in Special Sessions
One of the most important cases that has come before the New York courts in the interpretation of the Silver Law is the test action involving the application of these laws to articles correctly stamped as to the silver but containing in addition, substances like pitch and cement to increase their weight By direction of the City Magistrate Goodman, the case has now been referred to the Court of Special Sessions for trial and the result is waited with interest not only by jewelers and silversmiths of New York State but by members of the trade in all other States having silver laws, as in nearly every instance, these laws are based upon the New York statute.
The prosecution which is one of a number instigated by the Good and Welfare Committee of the National Jewelers Board of Trade in co-operation with the Bureau of Weights and Measures, is directed against William Aisenstein and Ida Altsitzer connected with the firm of Aisenstein,Woronock & Sons, 22 Eldridge St., N. Y., and the plaintiff in the case is Thomas F. Morgan, supervising inspector of the Bureau of Weights and Measures. Morgan claimed he purchased from the jewelry corporation some time ago, a candle stick stamped "sterling," the sale being made by Miss Altsitzer and Mr. Aisenstein, the latter being the responsible manager and head of the department.
The total weight of the candle stick was 11.81 ounces, while the weight of the silver was 1.80 ounces. The article was stamped "sterling" and the test showed that the silver or metallic part of the article assayed approximately up to the standard, being .924 parts pure silver, and it is conceded by the defendants that in addition to the silver, the base had a filling or stiffening* of non-metallic material, pitch, cement or something of that kind.
There was no question of fact in connection with the sale, the fight in this prosecution being one entirely over the question of the interpretation of the Silver Stamping Law. The defendants contend that the law is not violated because the metal composing the article is up to the standard stamped upon it, and further contended that the statute only set a standard for the fineness of the silver in the metal parts of the articles and had nothing to do with anything else in connection therewith.
The question was fought out last week in the Third District Magistrate's Court, Morris L. Ernst of Greenbaum, Wolff & Ernst, counsel for the Board of Trade, appearing for the complainant and urging that the defendants be held because the interpretation of the law which they contend, would lead to a legal absurdity and nullify the statute. He claimed on behalf of the Board and the Weights and Measures Bureau, that the purpose of Section 422 of the Penal Law (under which the action was commenced), was one to protect the public and the fact that candle sticks and other articles similar to the one involved in this action, have been made and sold in the trade for years is entirely immaterial if the sale in this particular case violates the statute. He contended that the weight of the article as purchased has much to do with its sale to the consumer; that the stamp "sterling" upon it creates the impression that all the article is sterling silver and if it is not, it is misbranded. He claimed that under the decisions already handed down by the courts in regard to the stamping laws, the mark on an article applies not only to the metal part which is visible to the consumer but also applies to all portions of the article which appear or purport to be the metal upon which the stamp is applied, citing in support of this the case of People vs. Klein and the decision of Judge Blanchard of the Supreme Court, who overruled a certificate of reasonable doubt on the conviction of the defendant therein. He also cited the opinion of the Appellate Division in the case, People vs. Jammes, the Appellate Court sustaining the conviction in broad, general language, to the effect that the object of the statute is to prevent the purchaser from being imposed on by the seller as to the quality of the goods which he purchases.
Mr. Ernst further claimed that if the contention made by the defendants be allowed to stand and articles be permitted under the law to be filled with things other than metal, that it would permit of wholesale fraud. He pointed out that there was no question that had the article been filled with copper or some metal worth more than pitch or cement, the statute would be violated. He thought it inconceivable that the legislature intended that an article filled with a more valuable material might violate the law; whereas the same article filled with a cheaper or less valuable material would be exempt.
Magistrate Goodman in his decision sustaining the complaint in the case and holding the defendants for the Court of Special Session gave an oral opinion in which he said in part:
"As a committing magistrate it is only necessary for me to pass upon whether or not a crime has been committed, and if so, is there probable cause for me to believe the defendant guilty of the commission of the crime. I am not going to pass upon the intent of the Legislature, but simply upon the construction of the statute, which is to be construed strictly in favor of the defendant. It surely appears to me, in passing this Act the Legislature intended to protect the public. When a storekeeper has in his possession, either for sale or with the intent to sell, any article of metal branded or stamped with the word "sterling," it is surely with the intent to make the customer believe that the article is sterling silver. The facts being conceded that this was stamped "sterling" silver, and the assay showing it does not come up to the requirements of the statute, he is entitled to know what this candlestick contains. It was represented to him as sterling silver. If he were paying for 11 ounces of silver he ought to receive 11 ounces of silver, in my opinion. However, under the assay it didn't equal but a fraction more than an ounce.
"For these reasons I deny your motion to dismiss, and hold the defendant for trial in the Court of Special Sessions.
"defendant's Counsel: Will you let it appear on the record that the stamping is not done by either of the defendants. It was done by the manufacturer.
"the Court: The statute is very plain: 'Any person who offers to sell or dispose of or who has in his possession with intent to dispose of.'"
William Jasie, of Jasie & Solomon, counsel for the defendants, in speaking of the case said:
"Under Sec. 422 of the Penal Law (which he quoted) proof of intention to defraud or misrepresent is not necessary. The selling of an article stamped 'sterling silver' or 'sterling' which does not contain the quantity of silver required by that statute is obnoxious to that section without regard to intent. My clients did not manufacture the article sold. They had nothing to do with the stamping of the article sold.
"We contend that the article manufactured and stamped does not come within that section, for the reason that the article is not loaded with metal, but is loaded with pitch and the metal of which said article is manufactured contains 925/1000 pure silver of the component parts of the metal in compliance with the aforementioned section.
"The Committing Magistrate is not a trial judge. He held that the intention of the Legislature in enacting Section 422 of the Penal Law was to stop dealers stamping articles 'sterling' unless the article in all its parts is sterling. In our opinion he disregarded the wording of the statute 'unless 925/1000 of the component parts of the metal of which the said article is manufactured is pure silver.'
"It is our belief that our clients did not violate that section. We are not retained to defend nor to take care of the manufacturer's interest. Aisenstein-Woronock & Sons' attitude in the matter is that if the court finds that the selling of such articles, which are loaded, although the metal of which said article is manufactured contains the silver required under Section 422, as in this case it contains, is a violation of law, they will discontinue the sale of such articles.
"It is of vital interest to the manufacturers to have this question disposed of once and for all by having it decided by the court of final jurisdiction."
Source: The Jewelers' Circular - 31st January 1923
Trev.