138 N.Y.S. 1073 | N.Y. App. Div. | 1912
The relator was arrested on the 27th day of September, 1912, and arraigned before a city magistrate in the borough of Brooklyn, charged with keeping and maintaining a disorderly house. The relator was held for examination, and thereafter
The information on which the relator was arrested is made by a police officer, one George M. Bilaffer, who deposes and says that “on the 27th and 28th days of August, 1912, and on other days in said month, "x" * "x" one Alice Gill did wilfully keep and maintain at the premises, 59 Willoughby street, a disorderly house and place for the practice of prostitution in violation of section 1146 of the Penal Law, as follows:” He then states that on the 27th day of August, 1912, in company with another police officer, who does not appear further in the proceedings, he “went to the premises 347 Bridge street, in the borough of Brooklyn, at which place the said Alice Gill resided; that he saw the said Alice Gill and asked her if she was the lessee of the premises 59 Willoughby street, in the borough of Brooklyn, and said Alice Gill replied that she was such lessee. Deponent then told defendant that Lizzie Conners, Mabel Johnson and Florence Burke were common prostitutes and practiced prostitution in her house by bringing men in for that, purpose, and that they had been convicted of being common prostitutes, to deponent’s knowledge; deponent also told defendant that she must at once cease to permit and allow her house to be used for the purpose of unlawful sexual intercourse and prostitution, and that she should forthwith dispossess and oust from said premises the said women. That thereafter and since the said 27th day of July, 1912, the defendant has unlawfully and wilfully permitted and allowed the said Lizzie Conners and Mabel Johnson and other women whom deponent knows to be common prostitutes and engaged in unlawful sexual intercourse to live in said house and to practice unlawful sexual intercourse and prostitution with men in said house. ” The information then sets out the grounds which the deponent
Does this information charge the defendant with any crime % The learned court at Special Term has held that it does not, and this is the only important question to be determined upon this appeal. It is not Claimed that the defendant kept a house of ill-fame at her own residence; she is said to have admitted that she was the lessee of certain premises at 59 Willoughby street, but there is no allegation that she had sub-leased the premises to Lizzie Conners and Mabel Johnson, or to any other persons, or that these women, or any other women, were in possession of the premises through any relations with the defendant. So far as the information goes, the Conners and Johnson women may have been unlawfully in possession of the premises, or they may have been in possession under some sub-lessee. But, assuming that these women were tenants of the defendant, is the mere fact that a policeman tells a lessee that his premises are occupied by common prostitutes, and that they are practicing prostitution in his house, ground for asserting that he knows that his tenants are soliciting and receiving men for immoral purposes ? A policeman speaks with no greater authority than any other, citizen upon matters of this charac_ter, and certainly no one will contend that a mere statement of this character on the part of a private citizen would call upon the defendant to take any active steps. The material allegation of fact is that. “since the 27th day of July, 1912, the defendant has unlawfully and wilfully permitted and allowed the said Lizzie Conners and Mabel Johnson and other women whom deponent knows to he common prostitutes * * * to live in said house and to practice unlawful sexual intercourse
The scheme of the statute permits the lessor, uponothe conviction of his tenant for any of the offenses mentioned, to terminate the lease, and makes it a misdemeanor for him to “knowingly or with good reason to know” permit the use of his premises for any of the prohibited purposes. That is, where his tenant is convicted, or he is in a position where he has good reason to know that his property is being used for immoral purposes, he is guilty of a misdemeanor if he does not act, but this language, “ knowingly or with good reason to know ” is
Here there is nothing to indicate that the defendant became the lessee of the premises for the purposes denounced by the statute. So far as the record discloses she was the lessee, but what her relations to- the Conners and Johnson women were does not appear. The law presumes that if she sub-leased the premises she did so in good faith and in harmony with the law. If she had a long-term lease, and had sublet the premises in good faith to these women, she could not dispossess them because they had been convicted of being common prostitutes; it is only when convicted “ under this section ” that the lease becomes void at the option of the lessor, and she would owe no duty in the premises unless she had knowledge which gave her “ good reason to know ” that the premises were being improperly used, and this, as we have seen, contemplates that character of knowledge which would call upon good citizenship generally to act. Suppose the defendant to have leased the premises for a term of five years. Unless the lease contained restrictive provisions she might sublet the premises to a third party, and that party might sublet to another, and so on indefinitely. (18 Am. & Eng. Ency. of Law [2d ed.], 680, 681.) There is nothing in the record here to show that these alleged common prostitutes were in possession of the premises at 59 Willoughby
The order appealed from should be affirmed.
Jenks, P. J., and Rich, J., concurred; Thomas and Carr, JJ,, concurred in result.
Order affirmed.