People ex rel. Duryea v. Wilber

• Decision Date: 22 February 1910
• Citation: 198 N.Y. 1,90 N.E. 1140
• Parties: PEOPLE ex rel. DURYEA v. WILBER, County Peace Officer.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 1

90 N.E. 1140

PEOPLE ex rel. DURYEA

v.WILBER, County Peace Officer.

Court of Appeals of New York.

Feb. 22, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Application for a writ of habeas corpus by the People, on the relation of Oscar Duryea, against David Wilber, a peace officer of the county of New York, for the discharge of relator. From an order of the Appellate Division (119 N. Y. Supp. 1140), affirming an order of the Special Term dismissing the writ, relator appeals. Reversed, and relator discharged.

The relator, a reputable dancing teacher in New York City, was on Cotober 2, 1909, arrested by the defendant for willfully and unlawfully violating the provisions of chapter 400 of the Laws of 1909, in that he did, at the place therein stated, conduct a school for dancing without having obtained a license, as required by law. The warrant for the relator's arrest was obtained upon a written information signed and sworn to by the defendant, which stated that on that day (October 2, 1909) there appeared in the New York Times, a newspaper published and sold in New York City, an advertisement of the relator, a copy of which is made a part of the information, and that on said day the informant visited the premises of the relator, and from which information we quote as follows: ‘I asked the said Oscar Duryea whether he was the person referred to in said advertisement and conducted the Oscar Duryea school, and the said Oscar Duryea stated that he was, and that he was the proprietor of said school and said premises. I then suggested to said Oscar Duryea that I desired to be instructed in dancing, and asked the said Duryea whether I could be taught at that place. Said Oscar Duryea stated to me that he conducted a dancing school or academy, and that he had various dancing classes; that I could be taught privately-that is, individually-if I desired, or I could join one of the dancing classes; that he had classes every morning, afternoon, and evening; and that he had classes for children every afternoon. He stated that the Monday and Thursday night classes were for young people, and that these classes had dancing de luxe one a month, to which the members of the class could invite their friends, who could become part of the class which was on that evening instructed by him, if they so desired, at a charge of $1. The said Duryea also handed me at that time a catalogue, * * * which he stated to me he had issued since September 30, 1909, to advertise his business. He stated to me that he charged for instruction in the evening classes $12.50 for fifteen lessons; that for individual instruction he charged $15 for 6 lessons, and that he had charged this amount to pupils in dancing since the 30th day of September, 1909. I then paid said Duryea $1 for one optional lesson in class of October 2, 1909. * * * At the time that I was in said premises I saw and heard a large number of men and women being instructed in dancing by said Duryea, and said Duryea stated to me that the persons dancing in the place at that time were his pupils in dancing, and his regular Saturday night dancing class. I thereupon told him that I was a police officer, and that I had been sent to investigate the place. * * * He stated that he had not procured a license, as he had been advised by his counsel not to do so.’

Chapter 400 of the Laws of 1909 is an amendment to the Greater New York Charter by adding seven new sections after section 1487 thereof, as follows:

‘Sec. 1488. The words ‘public dancing academy,’ when used in this act, shall be taken to mean: (1) Any room or place in the city of New York in which dancing is taught, and which is designated, advertised or held out by advertisements, signs, placards or public notices of any kind, as a dancing school, dancing academy, dancing class, school for dancers, or place where dancing is taught; and (2) in which payment is made for instruction or to which admission can be had by paying for instruction or for the right to be admitted, or to which admission can be had by the purchase, possession or presentation of a ticket or token, or in which a charge is made for the caring for clothing or other property.

‘Sec. 1489. No public dancing academy shall be conducted nor shall dancing be taught or permitted in any public dancing academy unless it shall be licensed pursuant to this act and the license be in force and not suspended. Any person violating this section shall be guilty of a misdemeanor.

‘Sec. 1490. All public dancing academies shall be licensed by the mayor or other licensing authority of the city of New York; the fee for each such license shall be fifty dollars for each year or fraction thereof. All licenses issued on or between the first day of April and the thirtieth day of September of any year shall expire on the thirty-first day of March of the suceeding year. All licenses issued on or between the first day of October and the thirty-first day of March of any year shall expire on the thirtieth day of September of the succeeding year. No license shall be issued unless the place for which it is issued complies with all laws, ordinances, rules and the provisions of any Building Code applicable thereto, and is a safe and proper place for the purpose for which it shall be used, properly ventilated and supplied with sufficient toilet conveniences.

‘Sec. 1491. No license shall be issued until the licensing authority shall have received a written report of an inspector and of the bureaus and departments having supervision over the building or premises to be licensed or the construction thereof, that it complies with all applicable laws, ordinances, rules and provisions of Building Code. No license shall be renewed except after reinspection by the licensing authority. Additional inspection of every licensed dancing academy may be made under the direction of the licensing authority. All inspectors shall be permitted to have access to all public dancing academies at all reasonable times and whenever they are open for dancing, instruction in dancing or for any other purpose. Inspectors shall be required to report all violations. All reports shall be in writing and shall be filed and made matters of public record.

‘Sec. 1492. No liquors shall be sold, served or given away in any public dancing academy, or in any room connected therewith or on the same floor of the building. The word ‘liquors' as used in this section shall be construed as defined in the liquor tax law of this state.

‘Sec. 1493. The license of any public dancing academy shall be forfeited on conviction of any person for violation of section fourteen hundred and ninety-two of this act, or upon the conviction of any person for violation of section four hundred and eighty-four or section eleven hundred and forty-six of the penal law in or with respect to the premises of any public dancing academy. The license of any public dancing academy may be revoked by the licensing authority whenever the licensed premises do not comply with section fourteen hundred and ninety of this act, provided that the licensee or person in charge shall be served with a copy of the report or complaint and shall have the right to a public hearing.

‘Sec. 1494. The mayor or licensing authority of the city of New York may appoint such inspectors and other officials necessary to carry out the provisions of this act as may be authorized by the board of estimate and apportionment of said city or other authority having the right to appropriate public moneys. The money paid for licenses under this act shall be applied toward the payment of the salaries of the inspectors appointed hereunder. Any deficiency and any other expense of carrying this act into effect until appropriation can be made therefor shall be met by the issue of revenue bonds of the city.

‘Sec. 2. This act shall take effect September thirtieth nineteen hundred and nine.’

After the relator's arrest he procured a writ of habeas corpus, but the court at Special Term to which the writ was made returnable dismissed the same and paroled the relator in the custody of his counsel. An appeal was taken from said order to the Appellate Division, where the order was affirmed, and from the order of the Appellate Division an appeal is taken to this court.Julius M. Mayer, for appellant.

Wm. Travers Jerome, Dist. Atty. (Terence Farley and Theodore Connoly, of counsel), for respondent.

CHASE, J. (after stating the facts as above).

A public dancing academy as defined by the statute is a room or place. It may be a small room or a large place. It includes a room in a school building, and the parlors of a building otherwise used as a private house. Any room or place in the city of New York in which dancing is taught for a consideration to all applicants, pursuant to public notice of any kind, comes within the statutory definition. The license required is for the academy. If the place is licensed the act does not prescribe any moral or other qualities or qualifications for the teacher or the persons to be taught, or otherwise prescribe any moral or other standard or guide in the conduct of the dance. It is apparent, therefore, that the police power has not been exercised to preserve the morals of the city. The purpose of the act, so far as appears from an inspection of it, is to protect persons who are taught dancing from being taught in an unsafe or unhealthy room or place. That clause of the statute which expressly prohibits a license being issued is as follows: ‘No license shall be issued unless the place for which it is issued complies with all laws, ordinances, rules and the provisions of any Building Code applicable thereto, and is a safe and proper place for the purpose for which it shall be used, properly ventilated and supplied with sufficient toilet conveniences.’ The laws, ordinances, rules, and provisions of the Building Code are compulsory apart from the provisions of ...