Mayor of New York v. Eden Musee American Co. — 2 N.Y. St. Rep. 544

Majority

p. 544

The Mayor, Alderman and Commonalty of the City of New York, Respt’s, v. The Eden Musee American Company (limited), impleaded, etc., App’lts.

(Court of Appeals,

Filed June 25, 1886.)

Headnote

1. Amusements—When license required under New York consolidation act.—Laws oe 1882, chapter 410, as amended.

The consolidation act of 1882, as amended, forbidding the exhibition of certain entertainments until a license had been procured, was meant to include the Eden Musee, an exhibition of wax figures, with a hall adjacent where public concerts were given “ consisting of orchestral selections of a. high character, in a room or alcove which opens, at an elevation, into a larger room or hall, and is on a level with a high gallery encircling said' hall."

2. Same—“ Minstrelsy.”

The act of 1862 was intended and was confined to " negro minstrelsy/ but by the act of 1872 the word “negro” was dropped and the word “ minstrelsy” purposely left to its broad and general meaning.

Appeal from order of general term, supreme court, First department, affirming order of special term granting an injunction restraining defendants from giving musical entertainments as set forth in opinion, until a license had been taken out as required by the New York consolidation act.

G. W. Selegman, for app’lt; D. J. Dean, for resp’t.

The Consolidation act of 1882, as amended in 1885, uilder the head of “Amusements,” contains provisions for their license and regulation. Section 1998 enacts that “it shall not be lawful to exhibit to the public, in any building, garden or grounds, concert-room, or other place or room within the city, any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts therein, or any equestrian, circus or dramatic performance, or any performance of jugglers, or rope dancing, or acrobats, until a license for the place of such exhibition for such purpose shah have been first had and obtained.” The

p. 545

Eden Musee has been in the habit of giving public concerts, which its counsel describe as “consisting o£ orchestral selections of a high character, in a room, or alcove which opens at an elevation into a larger room or hall and is on a level with a high gallery encircling said hall.” This carefully drawn circumlocution avoids saying that the entertainment is upon a “stage,” but the difference is rather in the language than the fact. The proof shows that the place is one of public amusement to which visitors are attracted by the entertainment offered, to which an admission is charged, and which anybody may attend upon payment of the price. It is a private enterprise, planned and accomplished for personal gain and profit, like other places of public amusement, seeking the public patronage. Without doubt, it belongs to the general class of cases contemplated by the statute as needing more or less of governmental supervision and regulation, and so required to pay a license fee.

It is claimed, however, that it is neither an “entertainment of the stage,” nor an exhibition of “minstrelsy,” and thus not within the language of the statute, but is merely a concert, not named or included within the section referred to. The appeEant’s counsel traces to their origin what were known as minstrels, insisting that they were “strolling singers and musicians ” wandering about the country, and “not to be confounded with the musical artist or with the performer in an orchestra having a fixed abode or domicile.” Even if the test of difference between “minstrel” and “musician” was that one strolled and the other stayed at home, that one was a vagabond and the other a citizen, it is certain that the word “minstrelsy” has acquired a much wider meaning and is used in the statute in that broader sense. The act of 1862 was confined to “negro minstrelsy,” a phrase which designated a known and specific kind of musical entertainment, and so made that and the opera the subject of license regulations to the exclusion of what may be called concerts. But by the act of 1872 the word “negro” was. dropped and the word “minstrelsy ” purposely left to its broad and general meaning, without any qualifying or restrictive expression. It was as if the legislature had declared that instead of limiting the regulation to one sort or kind of “minstrelsy,” it should thereafter apply to aE sorts and kinds without limitation. So broad was the act that in 1815 the legislature deemed it necessary to speciaEy except from its operations private theatricals and church and Sunday school exhibitions and and the Eke. The phrase “any other entertainment of the stage ” is also very broad and comprehensive.

p. 546

Theatrical and operatic performances, minstrelsy and dancing, had already been specifically named, and “any other entertainment of the stage ” implied that there were others to be included. Was it meant that a boxing match on the stage of a place of public amusement did not need regulation and license, while an opera or a tragedy did? Taking the statute in all its terms it evidently meant to include all classes of public exhibitions such as are usually conducted upon a stage for the observation and amusement of the public, and we see no good reason for narrowing or restricting its obvious scope and purpose.

The order should be affirmed, with costs.

All concur.