People v. Edelstein

86 N.Y.S. 861 | N.Y. App. Div. | 1904

Jenks, J. :

The charge was a violation of section 195 of the Sanitary Code of the city of New York. The defendant was convicted and sentenced to pay a fine of $100, or, in default of payment, to imprisonment for twenty days. The defendant kept a stable,, and the offense proved was that horses therein stamped upon the floor throughout the night.

I am of opinion that the judgment of conviction must be reversed for the reason that the section does not apply. It reads: “ No person owning, occupying or having charge of any stable or other premises, shall keep or allow thereon or therein any dog or other animal which shall by noise disturb the quiet or repose of any person therein or in the vicinity, to the detriment-of the life or health of any human being.” "It is to be noted that the ordinance .is made first applicable to stables. The words “ other premises ” must be construed with reference to the word “ stable,” for reasons which, being hereinafter given, need not now be stated. Stables are peculiarly for the keep of horses, and almost exclusively sp in large cities. If this ordinance, in terms applicable to stables, was intended to apply to horses, why did it not so- provide, either in comprehensive general phrase or in specific terms ? On the contrary, it primarily prohibits in stables or like places the keep or sufferance of dogs. This specification makes for the exclusion of horses. The offense proved is not within the purview of the ordinance unless the words “ or other animal ” apply to horses. I think that the rule “generiper speciem derogatur” applies. Of course, if the ordinance had- simply read “ animal,” then horses would have been within its purview, but when it reads “ dog or other animal,” these general words following the specific term- must be defined- and - limited by it. So that the expression, “other animal” used after “ dog ” must be read as applying to animals ejusdem generis. (See Endl. Interp. Stat. § 405 ; Suth. Stat. Const. § 268, where a curious and apt decision, per Bayley, J., in Ex Parte Hill, 3 Car. & P. 225, is cited ; Chegaray v. Mayor, 13 N. Y. 220, 229 ; People ex rel. Davidson v. Gilon, 126 id. 147, 156 ; Blaschko v. Wurster, 156 id. 437, 443.) I think, then, that the ordinance is aimed at the keep of dogs in stables or like places which, by their noise, e. g., howls, baying or barking, disturb quiet or repose, to the detriment of life or health, or of such other animals for whose keep stables are not primarily provided, as by their noise do the like.

The judgment of conviction should be reversed, and the proceeding dismissed.

All concurred.

Judgment of conviction reversed and proceedings dismissed.