People v. Kaplan
| Decision Date | 11 June 1959 |
| Citation | 8 A.D.2d 163,188 N.Y.S.2d 673 |
| Parties | , 37 Lab.Cas. P 65,614 The PEOPLE of the State of New York, Respondent, v. Ira KAPLAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Wilmurt B. Linker, New York City, of counsel (Arthur E. Friedland, New York City), for defendant-appellant.
Irving Anolik, New York City, of counsel (Daniel V. Sullivan, District Atty., Bronx County, New York City), for respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and McNALLY, JJ.
On this appeal there is once more before us the question of whether the operation on Sunday of a self-service automatic coin operated laundry comes within the proscription of Article 192 of the Penal Law, which contains the 'Sabbath' laws. We recently held in People v. Gwyer, 7 A.D.2d 711, 179 N.Y.S.2d 987, that such an operation did not violate Section 2147 of Article 192 which forbids (with certain specified exceptions) the public 'selling or offering for sale' of any property. The basis of our decision there was that no sale of tangible property was involved. Here however we are not concerned with Section 2147, for the conviction has been obtained under Section 2146 which makes illegal the Sunday conduct of '[a]ll trades * * * 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.'
Our first inquiry therefore is whether defendant's operation may be classified as a trade. We think it must be so regarded. A trade is 'The business one practices or the work in which one engages regularly.' See Webster's New International Dictionary, Second Edition. The business in which defendant regularly engaged was the operation for gain of a coin operated laundry and consequently was his trade.
The argument is advanced that defendant was not conducting a trade on Sunday since he took no part in the operation and in fact was not even present, the premises having been left open the night before for the convenience and use of patrons on Sunday. The argument is ingenious but not realistic. Suppose that defendant had followed the same practice of operating on certain weekdays without being on the premises. Could it then be said that he was not engaged in a business or 'trade' on those days? We hardly think so for defendant's enterprise, no matter how viewed, was a trade, whenever and however operated.
It is urged, however, that the use of the coin operated laundry by the public on Sundy is a work of necessity, thus coming within the exception allowed in Section 2146. Of course, there can be no general rule as to what constitutes a work of necessity so as to make it permissible on a Sunday. That question must be dealt with as it arises in each case (Dinsmore v. New York Board of Police Com'rs, 12 Abb.N.C. 436, 446). No doubt the availability on Sunday of the washing machines in defendant's laundry would be a decided convenience to a portion of the public. Mere convenience however is to be distinguished from necessity, which connotes indispensability. It cannot be said that the operation of this laundry on Sunday is indispensable in so far as either the defendant or the public are concerned. The fact that the statute may impose inconvenience or hardship does not allow the Court to relieve defendant from compliance with its provisions. To do so would be to usurp the legislative function (People v. Kupprat, 6 N.Y.2d 88, 188 N.Y.S.2d 483; People v. Friedman, 302 N.Y. 75, 79, 96 N.E.2d 184, 185).
The argument is also made that there has been no proof that the operation of defendant's laundry interfered with the 'repose and religious liberty of the community.' The fault with this argument is that it ignores the plain legislative fiat (§ 2140) that certain acts 'hereinafter specified' are deemed 'serious interruptions of the repose and religious liberty of the community.' Under a similar statute it was said in People v. Moses, 140 N.Y. 214, at pages 215-216, 35 N.E. 499, at page 500:
'It is not the meaning of this section (then § 259 of the Penal Law) that every act which is claimed to be a violation thereof must, in fact, be a serious interruption of the repose and religious liberty of the community; but the legislature in subsequent sections specified certain acts which are declared to be serious interruptions of the repose and religious liberty of the community,--acts, necessarily described in general and comprehensive terms, which the law makers believed had a general tendency to interfere with Sunday as a day of rest and religious worship.'
The plan and intent of the present Sunday laws are substantially the same as when the Moses decision was written. Section 2140 states the general purpose to prevent interruption of the Sunday 'repose' but that section is amplified and particularized by the more precise restrictions contained in Section 2146 and other sections of Article 192. It is therefore not enough to say that so long as there is no interference with repose and religious liberty there is no violation, for the statute goes further than that. The first part of Section 2146 prohibits '[a]ll trades.' The sectiond part exempts trades that are 'works of necessity.' If we were to find that operating the coin operated laundry is a work of necessity, only then would we reach the question of whether, as a fact and entirely apart from Section 2140, there would be interference with repose and religious liberty. Unless therefore defendant's operation be considered a work of necessity there can be no exemption under the statute. We hold that the operation of the coin operated laundry on Sunday is not a work of necessity. It is therefore expressly prohibited by the first part of Section 2146, to which there is no exemption.
We reach the conclusion on the record before us that the conviction was proper and must be sustained.
The judgments appealed from should be affirmed. All concur except BREITEL and McNALLY, JJ., who dissent and vote to reverse and dismiss in dissenting opinion by BREITEL, J.
Judgments appealed from affirmed. Dissenting opinion by BREITEL, J., in which McNALLY, J., concurs. Order filed.
I vote to reverse and dismiss the informations.
Defendant has been convicted of two violations under the so-called 'Sunday laws' (Penal Law, § 2140 et seq., particularly § 2146). The statutes are ancient, have their parallels in other jurisdictions, and for over a century-and-a-half have eluded sharp delineation as to their meaning and effect (People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184, 186).
The question in this case is whether the operation of an automatic laundry on a Sunday is in violation of the statute which prohibits 'All trades, manufactures, agricultural or mechanical employments upon the first day of the week * * *.' (Penal Law, § 2146). An automatic laundry, as it has developed in this community, consists of a store at street level containing automatic machines from which users, upon depositing the appropriate coins, may obtain soap, starch, and other supplies for use in washing machines and, in similar fashion, upon depositing coins, use automatic washing machines. Such stores need be infrequently attended by their operators or agents and, insofar as Sundays are involved, as in this case, there is no one in attendance. The doors are kept unlocked from Saturday night until Monday and the persons who wish to use the facilities are free to come and go.
The Sunday statutes constitute a not-altogether consistent collection of sections adopted at various times in the history of the state. Some overlap; others, in an odd pattern, contain exemptions which nullify in part more general sections. As the Court of Appeals observed in the Friedman case, supra (302 N.Y. at page 80, 96 N.E.2d at page 186), in words that are undoubtedly an understatement: 'While the statute may not be perfectly symmetrical in its pattern of exclusions and inclusions, the equal protection of the laws does not require a Legislature to achieve 'abstract symmetry' * * * or to classify with 'mathematical nicety".
Insofar as automatic machines are concerned the case appears to be one of first impression at this appellate level.
Section 2140 of the Penal Law expresses the policy for the sections which follow. It is made...
To continue reading
Request your trial
-
People on Complaint of Follar v. Finkelstein
...he comes before another bench, he will be convicted for doing the same thing--keeping his launderomat open on Sunday (People v. Kaplan, 8 App.Div.2d 163, 188 N.Y.S.2d 673). 17 Note should be made that in the Gwyer case, the fact that an automatic vending machine on the premises offered pros......
-
Holly v. Pennysaver Corp.
...United States v. National Assn. of Real Estate Bds., 339 U.S. 485, 489-492, 70 S.Ct. 711, 714-715, 94 L.Ed. 1007; People v. Kaplan, 8 A.D.2d 163, 164, 188 N.Y.S.2d 673). It may be, as defendants claim in their affidavits submitted to Special Term, that the decision not to distribute the "Pe......
-
Fadden v. Cambridge Mut. Fire Ins. Co.
...S.Ct. 201, 61 L.Ed. 460; Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 308, 175 N.Y.S.2d 1, 5, 151 N.Y.2d 170, 173; People v. Kaplan, 8 A.D.2d 163, 164, 188 N.Y.S.2d 673, 675; People v. Jones, 172 Misc. 368, 16 N.Y.S.2d 558). The proof submitted shows that said individual was 15 years of age......
-
People v. Abrahams
...section 9 (People v. Gwyer, 7 A.D.2d 711, 179 N.Y.S.2d 987), but Is the practice of a trade not 'necessary' on Sunday (People v. Kaplan, 8 A.D.2d 163, 188 N.Y.S.2d 673). Further, this is so even when the proprietor of such an establishment does not work on Sunday, but merely leaves the fron......