People on Complaint of Hersh v. Rothberg

CourtNew York Magistrate Court
Citation167 N.Y.S.2d 813,8 Misc.2d 259
PartiesThe PEOPLE of the State of New York on the Complaint of Lillian HERSH v. Howard ROTHBERG, Defendant. City Magistrates' Court of Upper Manhattan
Decision Date01 November 1957

Page 813

167 N.Y.S.2d 813
8 Misc.2d 259
The PEOPLE of the State of New York on the Complaint of Lillian HERSH
v.
Howard ROTHBERG, Defendant.
City Magistrates' Court of Upper Manhattan.
Nov. 1, 1957.

Page 814

Netter & Netter, New York City, for complainant.

Gottlier & Schiff, New York City, for defendant.

WALTER J. BAYER, City Magistrate.

The defendant, a tenant under a written lease of the 4th and 5th floors of premises 121 East 69th Street, Manhattan, is charged with Disorderly Conduct in violation of Subdivision 2 of Section 722 of the Penal Law.

The complainant and her husband are the sole stockholders of the corporate landlord owner of the building and with their two sons occupy the other portions of the building for professional and residential purposes.

The testimony for the prosecution was that the defendant conducted a house party in his apartment in such a manner as to disturb the peace and rest of the complainant and her family.

The defense introduced evidence that on the night in question defendant invited about thirty guests to an after-theatre party in honor of actress Elaine Stritch who was about to leave for Europe for a professional engagement, which party ended about four o'clock in the morning and that the complainant and her family are the only other residents of the building.

[8 Misc.2d 260] It is undisputed that there was some piano playing, some dancing and music from a Hi-Fi record player and that the police were called early in the morning by the complainant because of the alleged noise and disturbance emanating from defendant's apartment.

To constitute disorderly conduct under the statute there must be an actual or threatened breach of the peace which in turn means a disturbance of the tranquility of the people of the state. People v. Chesnick, 302 N.Y. 58, 60, 61, 96 N.E.2d 87, 88, 89; People v. Perry, 265

Page 815

N.Y. 362, 365, 193 N.E. 175, 177. The acts complained of and the conduct charged must be one which reasonably tends to a breach of the peace or must at least be such that a breach of the peace has become imminent, or might reasonably be expected or intended to flow from such acts or conduct (People v. Monnier, 280 N.Y. 77, 78, 19 N.E.2d 789, 790; People v. Nixon, 248 N.Y. 182, 186, 161 N.E. 463, 465).

Here the acts and conduct of the defendant complained of can be ascribed at most a private annoyance. There was not that degree of commotion or disorder as would stir the general quietude of the...

To continue reading

Request your trial
3 practice notes
  • People v. Evans
    • United States
    • New York Court of Special Sessions
    • 27 Octubre 1959
    ...or threatened breach of the peace which in turn means a disturbance of the tranquility of the people of the state'. People v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, The mere commission by a person of any of the acts specified in Section 722 is not sufficient to spell out disorderly cond......
  • People v. Balnis
    • United States
    • New York County Court
    • 16 Diciembre 1958
    ...to constitute disorderly conduct where no breach of the peace has resulted or is imminent. People on Complaint of Hersh v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813; People v. McCauliff, 267 N.Y. 581, 196 N.E. There is also a very interesting distinction between offensive acts committed aga......
  • People v. La Sister
    • United States
    • New York Court of Special Sessions
    • 10 Febrero 1958
    ...conduct under this statute, said Magistrate Walter J. Bayer in a very able opinion in People on Complaint of Hersh v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, 814, 'there must be an actual or threatened breach of the peace which in turn means a disturbance of the tranquility of the people......
3 cases
  • People v. Evans
    • United States
    • New York Court of Special Sessions
    • 27 Octubre 1959
    ...or threatened breach of the peace which in turn means a disturbance of the tranquility of the people of the state'. People v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, The mere commission by a person of any of the acts specified in Section 722 is not sufficient to spell out disorderly cond......
  • People v. Balnis
    • United States
    • New York County Court
    • 16 Diciembre 1958
    ...to constitute disorderly conduct where no breach of the peace has resulted or is imminent. People on Complaint of Hersh v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813; People v. McCauliff, 267 N.Y. 581, 196 N.E. There is also a very interesting distinction between offensive acts committed aga......
  • People v. La Sister
    • United States
    • New York Court of Special Sessions
    • 10 Febrero 1958
    ...conduct under this statute, said Magistrate Walter J. Bayer in a very able opinion in People on Complaint of Hersh v. Rothberg, 8 Misc.2d 259, 167 N.Y.S.2d 813, 814, 'there must be an actual or threatened breach of the peace which in turn means a disturbance of the tranquility of the people......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT