People on Complaint of Godfrey v. Seuss

• Decision Date: 18 February 1970
• Citation: 313 N.Y.S.2d 552,63 Misc.2d 813
• Parties: , 64 Lab.Cas. P 52,432 The PEOPLE of the State of New York on the Complaint of PTLM. Arthur GODFREY, Complainant, v. Ernest SEUSS, Defendant.
• Court: New York City Court

Page 552

313 N.Y.S.2d 552

63 Misc.2d 813, 64 Lab.Cas. P 52,432

The PEOPLE of the State of New York on the Complaint of PTLM Arthur GODFREY, Complainant, v. Ernest SEUSS, Defendant.

City Court of New Rochelle.

Feb. 18, 1970.

[63 Misc.2d 814] Francis S. Claps, Corporation Counsel (Stephen G. Altman of counsel), for plaintiff. McGovern, Connelly & Dividson (Frank Connelly, Jr., of counsel), for defendant.

DECISION

RICHARD L. BALTIMORE, Jr., Acting City Judge.

Defendant has been charged by an information with the crime of 'Sabbath breaking' violation of Section 8 of the General Business Law of the State of New York, which reads as follows:

' § 8. Trades, manufactures, and mechanical employments prohibited on Sunday.

All trades, manufactures, (sic) agricultural or mechanical employments upon the first day of the week are prohibited, except that when the same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community.'

This section is derived from Section 2146 of the Penal Law and became effective September 1, 1967.

The facts are as follows:

Defendant operates what is commonly known as an automatic car wash. Most of the facts are undisputed. Defendant was operating the car wash on Sunday, January 11, 1970, at about 9:20 A.M. at premises 613 North Avenue, in the City of New Rochelle. The automobiles are washed by mechanical means while being run through equipment on a conveyer belt. The only activity by the defendant is to receive money from the operators of the vehicles and to direct the cars on to the conveyer belt at the rear of the premises. The defendant further testified that he informed customers that on Sundays no employee of the defendant would touch the cars, and that if they wished their cars to be manually wiped they would have to return on a week day.

The cars are pulled through the plant on a conveyer belt and also automatically dried by 280 horse power motors which blow about 85% Of the water off the car. On week days the remaining water is wiped from the windshield and hood of the car but not on Sundays. There was some conflicting testimony as to whether a windshield was wiped on Sunday. As the employee was at the back of the plant directing the cars while the defendant was talking with the officer, the Court finds as a fact that the employee did not manually wipe or touch the cars. His only activity was to substitute for the owner in directing the cars on to the conveyer during the period of time that the owner-defendant was engaged in conversation with the officer.

There remains, therefore, only a pure question of law as to whether the operation of the automatic car wash on Sunday is a violation of Section 8 of the General Business Law.

The decisions under Section 8 are in conflict and the courts are not in agreement.

The People rely upon three cases to sustain their position. The first is, People v. Gill, 206 Misc. 585, 134 N.Y.S.2d 622 (Mag.Ct.Queens, 1954), a violation of Section 2143 of the Penal Law. In that case the car wash was not an automatic plant, but employees were washing the cars under the supervision of the defendant. The Court decided that the employees were performing 'labor' as work for gain for 'gain or living'.

In People v. Schellberg, 204 Misc. 733, 125 N.Y.S.2d 868 (Mag.Ct.Bx. Cty., 1953), the defendant sought a permanent injunction against the enforcement of Section 2143 of the Penal Law. The case was tried on a stipulation, in effect an agreed state of facts. Paragraph 3 of the stipulation stated that 'the cars are washed by mechanical and human aids'.

People v. Gordon, 1 A.D.2d 1044, 152 N.Y.S.2d 614, affirmed without opinion the conviction of a violation of Section 2143, conducting the business of washing automobiles on Sunday. The Court of Special Sessions of the City of New York, Borough of Brooklyn, and the Appellate Division relied upon People v. Gowa, 275 App.Div. 686 (App.Div.2d Dept. 1949). There the Court affirms a judgment of the Magistrate's Court in the City of New York, Borough of Brooklyn, convicting the defendant of violating Section 2143 of the Penal Law (prohibiting labor on Sunday) in washing automobiles on Sunday. To the same effect see People v. Singer, 278 App.Div. 714, 2d Dept. 1951.

All of these cases involved Section 2143 of the Penal Law and not Section 8 of the General Business Law or its predecessor Section 2146 of the Penal Law. In each of these cases the facts are different from the instant case in that the washing of the cars was manual, not automatic, and required human labor.

The section of the law with which we are concerned is not a violation of the 'labor' statute, but of the 'trade' statute.

The defendant asserts that the washing of automobiles is a 'work of necessity'. This Court is not prepared to find that washing a car on Sunday falls within the definition of a 'work of necessity,' and relies upon People v. Kuppart, 6 N.Y.2d 88, 188 N.Y.S.2d 483, 160 N.E.2d 38 (1959).

The defendant relies upon People v. Bielecki, 56 Misc.2d 730, 291 N.Y.S.2d 217 (Cr.Ct., Queens, 1968). That case differs from the instant case in that there the Court decided that the 'practice of hair dressing and cosmetology was a licensed business under Article 27 of the General Business Law and was therefore not a trade.'

The defendant cites several cases which held that the operation of an automatic laundromat is not in violation of Section 8.

People v. Andob Corp., 25 Misc.2d 542, 543, 206 N.Y.S.2d 89, 90 (Westchester Cty.Ct. 1960) in holding that the operation of a self-service laundromat on Sunday did not violate the Sabbath Law (Penal Law Section 2146) specifically stated:

'Patrons of the launderette would enter the premises and operate the coin operated washing machines and driers in the process of doing their personal family wash. None of the corporate defendant's officers, agents or employees were present in the store or participated in any way with or on behalf of any of the patrons so engaged in doing their personal wash, on the Sunday referred to in the indictment.'

The Court (Nassau County Court, 1957) in two companion cases, People v. Polar Vent of America and People v. East Coast Attic & Basement Co. Inc., 10 Misc.2d 378, 174 N.Y.S.2d 789 (Nassau Cty.Ct., 1957) in interpreting Section 2146 of the Penal Law, held that the business which opened their show rooms on Sunday for the display of wares and the solicitation of appointments with prospective customers, but which made no sales, quoted no prices, accepted no money, nor gave any memorandum of sale, were still conducting a 'trade' on Sunday and were guilty of violating Section 2146. There, the Court refused to give 'trade', its restrictive meaning and differentiated it from 'mechanical employment'.

The Court of Appeals affirmed, without opinion, 4 N.Y.2d 954, 175 N.Y.S.2d 825, 151 N.E.2d 621 (1958).

In the instant case, this Court is not prepared to find that the washing of cars is a 'work of necessity', despite the holding of the Court in People v. Hilton, 119 N.Y.S.2d 692 (Mag. Ct., Bklyn., 1...