121 N.Y.S. 3 | N.Y. App. Div. | 1910
This action was brought to recover a penalty of $500 for an alleged violation by the defendant of an -ordinance of the city of Hew York prohibiting certain theatrical performances on Sunday. The ordinance in question was passed in December, 1907, and pro - vides that for a violation of the same an action may be maintained by the corporation counsel in the name of the city to recover the penalty therein provided, and, if a recovery be had, the judgment in and of itself vacates and annuls any license held by such violator. •At the conclusion of the trial the court — there being no conflict in the evidence — held as matter of law that defendant’s violation of the provisions of the ordinance had been established,, but' nevertheless dismissed the complaint upon the ground that the ordinance was ineffectual and could not be .enforced, since it was inconsistent with section 277 of the Penal Code, now section 2152 of the Penal Law. That section prohibits the same acts that the ordinance does, and declares a violation of the section to be a misdemeanor, and also imposes a $500 penalty to be recovered in the name of the People by The' Society for the Reformation of Juvenile Delinquents in the city of Hew York for the use of that society, and by the overseers of the poor in any other city or town for the benefit of the poor. It further provides that the doing of any of the prohibited acts of itself revokes any license held by the offender. The trial court was of the opinion that under section 719 of the Penal Code, providing that “ An offense specified in this Code * * * must be punished according to the provisions of this' Code, and not otherwise,” the ordinance was ineffectual and void and that the city had no right of action for the penalty thereunder. (63 Misc. Rep. 442.) From the judgment dismissing the complaint the city appeals.
Section 277 of the Penal Code was enacted in 1881 (Laws of 1881, chap. 676; amd. by Laws of 1883, chap. 358). There was, at and prior to the enactment of this section, a statute quite similar to it relating solely to the city of New York (Laws of 1860, chap. 501), and when the Consolidation Act was enacted (Laws of 1882, chap. 410) one of its sections (§ 2007) was almost identical with the statute then existing and with section 277 of the Penal Code, so far as the latter applied to the city of New York. Section 2007 of the Consolidation Act was amended by chapter 249 of the Laws of 1885
I am of the opinion that the ordinance is valid. It seems to me obvious that if the amendment to section 2007 of the Consolidation Act, which was passed in 1885, re-enacted in 1897 by section 1481
. As was pointed out in People ex rel. Hammerstein v. O'Gorman (supra) section 1481 was one of the charter, provisions relating to the granting of licenses,- while the Penal Code relates to crimes- and tlieir punishment. The penalty given the city is a civil ferhedy,. entirely distinct from the punishment of. the act or acts as a misdemeanor. (People v. Meakim, 133 N. Y. 214; People v. Snyder, 90 App. Div. 422.) As such it is not a punishment within the meaning of section 119 forbidding punishments other than as. specified in the Penal Code. That this is so is apparent from seetions 1 and 9, the latter of which provides: “ The punishments prescribed by this Code can be inflicted only upon a legal conviction in a court having jurisdiction.”
I am also of the opinion that the ordinance is valid irrespective of prior'legislation on the subject.. The board of aldermen undoubtedly, by virtue-of the provisions of the charter, had the power to regulate the granting and revocation of theatrical licenses. In the exércise of that power they could have required an applicant, for a license to deposit' security to the extent of $500 to be forfeited to
The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appéllant to abide event.