People on Complaint of Hughes v. Ziegler
| Decision Date | 10 April 1961 |
| Citation | 29 Misc.2d 429,214 N.Y.S.2d 177 |
| Parties | PEOPLE of the State of New York on the complaint of Patrolman Vincent HUGHES v. Charles ZIEGLER, Defendant. City Magistrate's Court, New York City, Borough of Manhattan, Upper Manhattan Arrest Part |
| Court | New York Magistrate Court |
John J. Maguire, Legal Bureau Police Department, New York City, for the People.
Lawler & Rockwood, New York City (Ward Smith, New York City, of counsel), for defendant.
Ashe & Rifkin, New York City (Eugene Victor, New York City, of counsel), for American Federation of Musicians Local 802, amicus curiae.
WALTER J. BAYER, Magistrate.
Unlawfully providing entertainment without a cabaret license in violation of Section 436-1.0 of the Administrative Code of the City of New York is the charge. Defendant Ziegler, president of the corporate owner and operator of the Cafe Figaro, defends by emphasizing that the alleged offending 'entertainment' was one of the admission free 'Cafe Figaro Chamber Concerts' given on Sunday afternoon at 3:00 p. m., September 18, 1960. The offered selections were 'Trio Sonata No. 2 in 'C' Minor' by Bach-Forbes, Schubert's 'Trio in B subb Major' and Beethoven's 'Trio in G Major Op. 9 No. 1' rendered by the Gurevich Trio of violin, viola and violincello.
Cafe Figaro, located at 186 Bleecker Street, in Greenwich Village, New York City, has a restaurant license but serves only coffee, pastries and sandwiches; it serves no alcoholic liquors of any kind.
The defendant Ziegler, a lover of serious music and a patron of the musical arts, arranged for a summer series of Sunday afternoon concerts at his restaurant. These concerts achieved such stature as to obtain weekly listing in the music section of the Sunday 'New York Times.'
That the musical programs involve an expense to the defendant and are seriously motivated can hardly be denied. He has obtained the services of both an overall musical director and program consultant--the well known Stefan B. Mengelberg Bauer, permanent conductor of the St. Louis Philharmonic Orchestra--and of a program director, Saul Kurtz, who hires the performers and arranges the programs. The defendant does not charge admission to these concerts; the program prominently proclaims this to the public. Indeed, defendant does not permit the service of food and drink during the performance; he does not allow patrons to enter the premises at such times; and he does not require the persons attending the performances to purchase food or drink as a prerequisite. The costs of the concerts, principally the payment of the musicians, are paid by defendant. That these performances redound to the benefit and credit of Cafe Figaro cannot be doubted.
During the course of the chamber music concert on Sunday afternoon, September 18, 1960, Patrolman Vincent Hughes, (though he 'enjoyed the music') served upon the defendant a summons charging him with violation of Section 436-1.0 of the Administrative Code in that Ziegler did unlawfully provide entertainment without a cabaret license.
To the ordinary layman, it would be manifest that this Sunday afternoon concert by a string trio could not possibly transform Cafe Figaro into 'Cabaret Figaro'. Common experience and knowledge plainly establish that a cabaret is 'a restaurant or barroom with dancing and singing as entertainment'. (Webster's New World Dictionary, College Edit.1955).
Only in the face of the plainest compulsion should the Court disregard the common experience and knowledge of the community. 'In construing statutes, the court must not depart from everyday common experience and knowledge. It must not assume that the Legislature in enacting this section acted in a vacuum without regard to "the pooled general knowledge' of the legislators themselves. ' Park-58 Corp. v. Reder, 21 Misc.2d 395, 400, 196 N.Y.S.2d 39, 45.
Section 436-1.0 1 provides for the 'Regulation of dance halls and cabarets.' Thus, the very opening sentence sets the sense and tone of the statutes. Linking together within the statute 'Dance Hall' and 'Cabarets' at once lays out the course and the thrust of the legislation. The definitions thereafter set out in the Section must be viewed in the light of this statutory backdrop.
Under the statute,
By dissection and taking words out of context, the Police Department argues that since a particular dictionary (Funk & Wagnall's New Standard Dictionary, 1952 Edit.) defines musical entertainment as including a concert, ergo, a Sunday afternoon concert of chamber music held admission free in a restaurant, is the 'musical entertainment' which makes that restaurant a 'cabaret' within the Police Department licensing powers.
Although these words standing alone technically might lend some support to the Police Department's contention, yet unless otherwise compelled so to do, this Court cannot blindly adopt a position so at odds with the facts.
Perfunctory application of statutory definitions despite common experience and knowledge has oft times led some courts into strange and even ludicrous holdings. Thus, a doctor's office was ruled to be a store (Sterling v. Lapidus, 17 Misc.2d 587, 183 N.Y.S.2d 98, aff'd. without opinion, App.T. 1st Dept. N.Y.L.J. 6/5/59) because the courts there fell into the error of rote in the mechanical application of the particular words making up the statute, ignoring the plain and obvious fact that a doctor's office is worlds apart from a store. But in Park-58 Corp. v. Reder, supra, 21 Misc.2d at page 397, 196 N.Y.S.2d at page 42 Mr. Justice Maxwell Shapiro, when confronted with the identical situation properly pointed out:
* * *'
In Sterling v. Lapidus, 10 A.D.2d 180, 199 N.Y.S.2d 216, 222, the Appellate Division of this Department reversed the lower courts, and agreed with Mr. Justice Shapiro. The Court made this pointed admonition.
'* * * The construction urged upon us by the landlord finds no support in the corrective thrust of the statute (H. Kauffman & Sons Saddlery Co. v. Miller, 298 N.Y. 38, 44, 80 N.E.2d 322, 324, 325). The words used by Judge Fuld in Kauffman are particularly appropriate; 'We find no such unreasonable and impossible choice dictated by the scheme of the statute and reject an interpretation of its words which would so clearly offend against common sense. Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results.'' Sterling v. Lapidus, supra, 10 A.D.2d at page 185, 199 N.Y.S.2d at page 222.
To apply this statutory definition of 'cabaret' in the manner advocated by the Police Department would make even the corner icecream parlor with its juke box and nickelodean subject to the statute. (Cf. People v. Hill, 18 Misc.2d 352, 192 N.Y.S.2d 342). One could hardly conceive such a venerable institution as being a 'cabaret'. '* * * To treat the living organism of the law as if it 'contain(s) only the axioms and corollaries of a book of mathematics' is an impossible oversimplification.' (Cahill, Judicial Legislation, Oliver Wendell Holmes, Jr.--(1952) P. 36).
At times in the ascertainment of legislative intention, the courts are truly called upon to determine what the legislature would have intended on a point not present in its mind, as if the point had been present. (Cardozo, The Nature of the Judicial Process, Lecture I, page 15). The Court here, however, is not faced with such a dilemma as the report 2 of the legislative committee is fully available. The Committee on Local Law of the Municipal Assembly in recommending favorable action upon Section 436-1.0 directed its provisions against nightclubs or cabarets which 'are simply dancehalls, where food is served at exorbitant prices to the time of jazz and tabloid entertainment'; and also to protect the "wild" stranger who frequents such nightclubs and who is not The Committee had the conviction that these visitors 'should not be tumbling out of these resorts at six or seven o'clock in the morning to the scandal and annoyance of decent residents on their way to daily employment.'
Although comment has been made that this legislative report fails to disclose the purpose of Section 436-1.0 () it is hard to conceive of plainer language of legislative purpose. In People v. Rickoff, the Court forecloses consideration of legislative history and intendment because the statutory definition is 'clear and precise'. But even in the face of language 'clear and precise', a Court must and should consider the legislative background and path of the statute. All available aids to statutory construction are to be explored in determining the meaning and intendment of a statute (2 Sutherland, Statutory Construction, 3d Ed.S. 4502). Legislative history is not to be ignored, even if the words be clear. The United States Supreme Court has emphatically asserted...
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