People ex rel. Jacques v. Flaherty — 21 N.Y. Crim. 557

Majority

p. 557

SUPREME COURT—APP. DIVISION—SECOND DEP.,

Dec. 1907.

THE PEOPLE EX REL. JOHN JACQUES v. MICHAEL J. FLAHERTY, SHERIFF.

(122 App. Div. 878.)

Headnote

(1) Chumen—Theabes—Penal Code § 290.

Section 290 of the Penal Code making it a misdemeanor for a person who owns, keeps or manages a theatre to admit a child actually or apparently' under the age of sixteen unless accompanied by a parent or guardian, has no application to one employed solely to take tickets at the entrance.

Appeal by the defendant, Michael J. Flaherty, sheriff of Kings county, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of April, 1907.

Peter P. Smith [ John F. Clarice with him on the brief], for the appellant.

Meier Steinbrinlc, for the respondent.

This is an appeal from an order of the Special Term made upon the return of writs of habeas corpus and certiorari declaring the relator unlawfully restrained of his liberty and ordering his discharge. Relator was a taker of tickets at the main door of the Imperial Theatre in Brooklyn. On the evening of March 22, 1907, he received tickets from two boys, aged fourteen and fifteen years respectively, not acco&panied by parent or guardian, and admitted them to the theatre. For this act he was arrested, and upon examination before a magistrate held for the action of the Court of Special Sessions pursuant to the provisions of section 208 of the Code of Criminal Pro

p. 558

ceclure. Writs of certiorari and habeas corpus were subsequently issued, upon the return of which he was discharged.

The said section 290 of the Penal Code, under which the prosecution was had, provides: “ A person who * * * admits to or allows to remain in any * * * theatre * * * owned, kept or managed by him in whole or in part, any child actually or apparently under the age of sixteen years, unless accompanied by its parent or guardian * * * is guilty of a misdemeanor.” The serious question presented for our determination is whether the relator was “ a person” who “ managed ” that theatre “ in part ” within the meaning of the statute. We are unable to concur in the argument that it was the intention of the Legislature to include within the provisions of the act all employees of a theatre who were called upon for the exercise of any discretion. The duty of the ticket taker is to admit those persons presenting tickets, and presumably to see to it» that none enters without a ticket. The person in the box office passes upon the right of the individual to admission, and the mere ticket taker cannot be held liable criminally for the admission to the theatre of a holder of a ticket as manager. He is no more the manager of a theatre than is the boy who draws kerosene oil the "manager of a department store. Eelator contends that one of the boys was preceded by an adult who informed him that they were with him, but that is immaterial in the view we take of the statute. The legislature might require the ticket taker to pass upon the right of persons to enter the theatre, but it has not done so.

The order discharging the relator must be affirmed, with fifty dollars costs and disbursements to the respondent.

Hirschberg, P. J., Woodward, Hooker and Gaynor, JJ., concurred.

Order affirmed, with fifty dollars costs and disbursements.