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In re City of New York

Supreme Court of New York, Appellate Division

April 16, 1909


Appeal from Special Term, New York County.

Summary proceedings by the City of New York against William Morris, Incorporated, to revoke a theatrical license. From an order overruling preliminary objections to jurisdiction, denying a motion to dismiss, and appointing a referee, defendant appeals. Reversed, and proceeding dismissed.

George M. Leventritt, for appellant.

Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel, and Terence Farley, on the brief), for respondent.



This is an appeal from an order of the Special Term upon an application by the city to revoke a license issued to William [116 N.Y.S. 354] Morris, Incorporated, for the American Theater, upon the ground of the violation of an ordinance passed December 17, 1907, by the giving of Sunday performances alleged to be prohibited by said ordinance. The order appealed from overruled certain preliminary objections made to the jurisdiction of the court, denied the motion to dismiss the proceedings, allowed the respondent time in which to serve an answer to the petition, and appointed a referee to take proofs and report his opinion. The preliminary objection, in brief, is that there is no existing law providing for a summary proceeding to obtain a revocation of a theatrical license for a violation of the ordinances in respect to Sunday performances, but that it is now provided that such revocation shall follow and depend upon a judgment for the recovery of a penalty of $500, which the corporation counsel is authorized to prosecute for and recover.

The Greater New York Charter (chapter 378, p. 519, of the Laws of 1897), in chapter 22, tit. 2, under the head " Amusements, Public Exhibitions to be Licensed," provided in brief as follows:

Section 1472 declared that it should not be lawful to publicly exhibit any interlude, tragedy, comedy, etc., until a license for the place of such exhibition should be first had and obtained. By section 1473 the police department was authorized to grant such license for the sum of $500; but any one who should neglect to take out such license and give such an exhibition was subjected to a penalty of $100 for every such exhibition, to be prosecuted and sued for and recovered in the name of the city. Section 1476 reads:

" Revocation of License. Any license provided for by the preceding sections may be revoked and anulled by any judge or justice of any court of record in said city, upon proof of a violation of any of the provisions of this title; such proof shall be taken before such judge or justice, upon notice of not less than two days to show cause why such license should not be revoked. Said judge or justice shall hear the proofs and allegations in the case and determine the same summarily; and no appeal shall be taken from such determination; and any person whose license shall have been revoked or annulled shall not thereafter be entitled to a license under the provisions of said sections; on any examination before an officer, pursuant to a notice to show cause, as aforesaid, the accused party may be a witness in his own behalf."

Section 1477 provided that any person violating sections 1472 and 1473 should be deemed guilty of a misdemeanor, and upon conviction should be punished by imprisonment in the penitentiary for a term not less than three months nor more than one year, or by a fine of not less than $100 nor more than $500, or both such fine and imprisonment. By section 1478 it was made the duty of the police to arrest any person violating the provisions of sections 1472 and 1473. By section 1479 the corporation counsel was authorized to apply to the Supreme Court for an injunction against any person who should open or advertise to open any place in violation of section 1472 without having obtained the license provided for in section 1473. Section 1480 contained certain exemptions as to amatuers and exhibitions for charitable and religious purposes, etc. Section 1481 prohibited certain specified performances on Sunday, and provided that any person offending against the provisions of the section-

[116 N.Y.S. 355] " shall be guilty of a misdemeanor, and in addition to punishment therefor provided by law shall be subject to a penalty of five hundred dollars, which penalty the corporation counsel of said city is hereby authorized in the name of the city of New York to prosecute, sue for and recover; in addition to which every such exhibition or performance shall of itself forfeit, vacate and annul and render void and of no effect any license which shall have been previously obtained by any manager, proprietor, owner or lessee consenting to, causing, or allowing or letting any part of a building for the purpose of any such exhibition or performance."

By section 1482 minors under 14 years were not to be admitted to any theatrical exhibition held in the evening, unless accompanied by an adult person. A violation of its provisions was made a misdemeanor. Section 1483 prohibited the selling of beer, wine, or strong or spirituous liquors in any such place of exhibition, or the employment of females to wait on or attend in any manner or to furnish refreshments for the audience at any such exhibition. Section 1484 provided that no license for any exhibition given in violation of the preceding section should be granted, and any and every exhibition or performance at which any of the provisions of said section shall be violated shall of itself vacate and annul any license previously obtained. Section 1485 provided that any person violating any of the provisions of the two preceding sections shall be deemed guilty of a misdemeanor and punishable as prescribed. Section 1486 gave the right for the police to enter and arrest; and section 1487 provided for a diagram on the play bill and the marking of the doors and exits, and a noncompliance subjected the offender to a penalty in the sum of $50, to be sued for and recovered in the same manner as violations of the building laws should be sued for and recovered.

When the charter was revised, by chapter 466, p. 651, of the Laws of 1901, it did not reincorporate in terms title 2 of chapter 22 of the charter of 1897-" Amusements, public exhibitions to be licensed." But by section 3 of section 1620 it provided as follows:

" The several sections of the said chapter 378 of the Laws of 1897, the numbers and titles of which are set forth in the second schedule annexed to this act entitled ‘ Second Schedule, Sections to Remain in Force until Changed by the Board of Aldermen,’ are and each of them is hereby, continued in full force and effect until the board of aldermen as constituted by the foregoing provisions of this act shall pass ordinances regulating the matters provided for in the said several sections mentioned in the second schedule, all of which ordinances the said board of aldermen is hereby expressly empowered to pass. Upon the passing of any such ordinances ...

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