152 Misc. 372 | New York County Courts | 1934
The appellant has been convicted in the City Court of the city of Norwich of the crime of disorderly conduct under
The appellant was charged with the commission of the offense in an information made by Harold Sweet and the deposition of Leían Brookins. Copies of same follow:
“ City of Nobwich 1 County of Chenango Us:
State of New Y obk
“ Harold Sweet being duly sworn deposes and says that on or about May 31, 1934, the crime of Disorderly Conduct in violation of Penal Law Section 722 was committed by Herbert Kelly in that he did willfully, wrongfully and unlawfully engage in some illegal occupation to wit: selling alcoholic beverages at house in Gladding Lane in City of Norwich, without license or authority to sell same as provided by laws of State of New York, or any law. Deponent states that on said occasion, date and place, he purchased a bottle of alcohol from said Kelly paying him $1.00 for same, tasting and smelling of same and states it was intoxicating. The only means of livelihood or occupation I observed Herbert Kelly had was the selling of alcoholic beverages. „ (SD-) HAROLD SWEET.
“ Taken, subscribed and sworn" to before me this 5 day of ■
June 1934.
“ (Sd.) Theodoee C. Bonney,
“ City Judge.”
“ City of Nobwich County of Chenango State of New Yobk
ss:
“ Leían Brookins being duly sworn deposes and says he is acquainted with the facts relating thereto and states Herbert Kelly has no License issued to him authorizing sale by him of alcoholic
beverages. « (SD.) LELAN BROOKINS.
“ Taken, subscribed and sworn" to before me this 5 day of June 1934.
“ (Sd.) Theodoee C. Bonney “ City Judge.”
The information charges the defendant with the offense of disorderly conduct committed by willfully, wrongfully and unlawfully engaging in an illegal occupation; that illegal occupation is set forth as the sale of alcoholic beverages at a house in the city of Norwich without a license or authority to so engage. It was intended to charge an offense as described in subdivision 11 of section 722 of the Penal Law. In order to sustain the conviction, it must appear that the defendant engaged in some illegal occupation. A review of the evidence taken on the trial shows the sale to the complainant of a pint of liquor. The evidence was confined to one sale. There was no evidence given as to appellant’s occupation or the business, if any, in which he was legally engaged. The deposition of Leían Brookins, one of the police officers of the city, showed that the appellant had no license authorizing him to sell alcoholic beverages. In order to convict of disorderly conduct, because of engaging in some illegal occupation, it is necessary to show that the defendant was so engaged. The general business of selling alcoholic beverages without authority and unauthorized by law would be an illegal occupation and doubtless would constitute disorderly conduct under the section referred to. A single sale is not sufficient, however, to constitute an occupation. An occupation is not acquired by a single transaction. It involves a continuous series of transactions; acts engaged in with continuity sufficient to become a business. “ Occupation ” is defined in Bouvier’s Law Dictionary as “ a trade, business or mystery; as, the occupation of a printer.” Webster defines the meaning of the word as: “ That which occupies, or engages, the time and attention; the principal business of one’s life; vocation; employment; calling; trade.”
In People v. Bright (203 N. Y. 73, at p. 78), discussing the term “ common gambler,” the court say: “ The context makes it unreasonable to suppose that the legislature in enacting the clause under
“ Occupation is defined to be that which occupies the time and attention — the principal business of one’s life — occupation, employment, calling or trade. [Citing cases.] It means the legal business of a person.” (Pulaski v. Sovereign Camp of the Woodmen of the World, 105 Misc. 740.)
The one sale of liquor proven to have been made by the appellant was not sufficient proof showing him to be engaged in an illegal occupation. (People v. Meola, 193 App. Div. 487; Graves v. Knights of Maccabees, 199 N. Y. 397; Union Mutual Accident Assn. v. Frohard, 134 II1. 228.)
It is unnecessary to pass upon the other questions raised by counsel for appellant, as the failure of any proof to show the defendant engaged in an illegal occupation makes it necessary to reverse the judgment of conviction. An order of reversal may be entered.