In re City of New York

This is an appeal from an order of the Special Term upon an application hy the city to revoke a license issued to William 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 Mew York charter (Laws of 1897, chap. 378), in chapter 22, title 2, under the head “Amusements. Public Exhibitions to be Licensed,” provided in brief as follows: Section 1472, that it should not he lawful to publicly exhibit any interlude, tragedy, comedy, etc., until a license for the place of

When the charter was revised, by chapter 466 of the Laws of

As section 1416 provides for a summary proceeding for the revocation of a license, “upon proof of a violation of any of the provisions of this title ” and as section 1481, which was the provision of that title which prohibited certain Sunday performances, has been repealed by the board of aldermen in conformity with the power granted to said board to legislate upon such subject by the legislature, under the provisions of “Section Three” of chapter 466 of the Laws of 1901, there does not now exist any section in said title, to wit, title 2 of chapter 22, governing or controlling Sunday performances. The legislature, while it might confer power upon the board of aldermen to pass ordinances upon the subjects enumerated in said title, could not confer power upon the board of aldermen to amend, add to or change the charter. While the act of 1901 provided for a continuation of the said provisions until the board of aider-men acted, it was expressly provided that, “Upon the passing of

It follows that section 1481 has been repealed by the passage of the ordinance, but that ordinance has not been inserted in place of section 1481 in the title from whence it was taken. Therefore, there being left in that title no provisions as to Sunday performances, section 1476 of that title can no longer be held to apply to violations of the Sunday Law, but must be confined in its application to the other sections of said title remaining unrepealed. The result follows that the only way in which a license is to be revoked for violations of said ordinance, is upon the obtaining of a judgment for the penalty prescribed. Such judgment in and of itself revokes and vacates, said license. The difference between section 1481 and the new ordinance is that under section 1481 the prohibited performance itself forfeited, vacated and rendered of no effect the license. Under the new ordinance the judgment accomplished that result. A summary proceeding was provided for in section 1476 to reach a violation of section 1481, while under the new ordinance the revocation is an incident of a judgment in a civil action, or as the result of a criminal prosecution under the Penal .Code. This leads to the conclusion that the Special Term had no jurisdiction to entertain this proceeding. But the respond-c nt claims that the order is not appealable, claiming that as by section 1476 of the original charter, providing for the summary proceeding, it is provided that no appeal shall be taken from such determination, it follows that an order overruling preliminary objections to the proceeding as without jurisdiction cannot be appealable, and that the only way to test the question of jurisdiction is by writ of prohibition, the method employed in People ex rel. Hammerstein v. O’Gorman, 124 App. Div. 222 .

The order appealed from not only overrules the preliminary objections, but appoints a referee. Section 1356 of the Code

The summary proceeding provided by section 1476 of the original charter is a special statutory proceeding. That section provides that said judge or justice shall hear the proofs and allegations in the case and determine the same summarily. There is no provision therein contained for the appointment of a referee, and such appointment would seem to do violence to the language and intent of the statute. A summary power granted to a justice who, it is provided, shall hear the proofs and allegations, and from whose determination there is no appeal, would seem to negative the power to appoint a referee. The unauthorized appointment of a referee with the requirement that the parties shall go before him to make their proofs, with liability for the expenses of said reference, undoubtedly affects a substantial right. As the section of the charter does not contemplate the appointment of a referee, it is not specially prescribed by law that such an order cannot be reviewed, and so section 1361 of the Code does not apply. The right to appeal is, therefore, conferred by section 1356 (supra), and, therefore, we think, the whole question is properly before this court.

It follows, therefore, that, the order appealed from should be reversed and the proceeding dismissed, with ten dollars costs and disbursements to the appellant.

Ingraham, Laughutn, Houghton and Scott, JJ., concurred.

Order reversed and proceeding dismissed, with ten dollars costs and disbursements. .