| N.Y. App. Div. | May 16, 1913
Lead Opinion
The statute under which the defendant was convicted provides as follows: “ All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.”
The particular work upon which the defendant was engaged was repaving a street in a populous quarter of the city of Hew York. He was doing the work under a contract with the city, but his contract did not require him to prosecute the work on Sunday, nor had he been directed so to do by any city official. There are doubtless many cases in which the prosecution of public works on Sunday is.needful for the .good order, health or comfort of the community, and, therefore, permissible under the statute, but this is not, in our opinion, such a case. .
No such justification appears in the present case, and the defendant in pursuing the work acted upon his own responsibility at the. peril of being able to show to the satisfaction of the court that the work was in fact, one of necessity. In this, he has failed.
The judgment of conviction is affirmed.
• McLaughlin,' Laughlin and Clarke, JJ., concurred; Ingraham, P. J., dissented,
Dissenting Opinion
I dissent. I think that when a city street has to be repaved, depriving the public of the use of the street and exposing the city to the danger of liability because of the dangerous condition of the street while repaving is being conducted, that it is a work of necessity within the exception specified in section 2143 of the Penal Law. That section prohibits all labor on Sunday “ excepting the works of necessity and charity,” and “ in works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community. ” We all know the interference with travel and the discomfort and annoyance of the community which are involved in tearing up the pavement of a city street, and any work that will reduce that discomfort and annoyance to a minimum is distinctly in the public interest, and is, I, therefore, think, a work of necessity within the. meaning of this section of the Penal Law.
The prevailing opinion recognizes that “if it had appeared that any city official, charged with the conservation of the good order, health or comfort of the community, had directed the defendant to proceed with the work on Sunday, * * * that he would have been absolved from the imputation of a criminal intent if he had complied with the direction.” I do not understand that the question of the necessity of work of this kind is to be determined by “any city official.” The work of
I think, therefore, the judgment should be reversed and the defendant discharged.
.Judgment affirmed.