People v. Rubenfeld

• Decision Date: 08 July 1930
• Citation: 172 N.E. 485,254 N.Y. 245
• Parties: PEOPLE v. RUBENFELD.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 245

172 N.E. 485

PEOPLE

v.RUBENFELD.

Court of Appeals of New York.

July 8, 1930.

David Rubenfeld was convicted in the Court of Special Sessions of the City of New York of Maintaining a public nuisance, and the Appellate Division of the Supreme Court in the First Judicial Department affirmed the conviction (228 App. Div. 771, 239 N. Y. S. 877), and defendant appeals by permission.

Affirmed.Appeal from Supreme Court, Appellate Division, First department.

Walter A. Lynch and Hugo I. Epstein, both of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert Daru, of New York City, of counsel), for the People.

CARDOZO, C. J.

The defendant stands convicted of maintaining a public nuisance in the city of New York.

At the northwest corner of One Hundred and Eighty-Third street and St. Nicholas avenue, a caterer, the Paramount Mansion Company, occupies a three-story building for the uses of its business. The defendant is the manager. There are dances, weddings, and other entertainments, one on each story, beginning in the evening and continuing till dawn. The sounds of revelry by night, to the accompaniment of drums and brasses, assail the quiet of the vicinage. Neighbors in the apartment houses to the right and to the left describe the tumult and the shouting with the disturbance of their sleep. A neighbor across the street bears witness to the same effect. A traveler on the highway heard the noise a block away. The district is a populous one, in which many have their homes.

By the Penal Law of the state (Consol. Laws, c. 40), an act which ‘annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons' is declared to be ‘a public nuisance,’ and punishable as a crime. Penal Law, § 1530, subd. 1. The definition corresponds to the distinction between public and private nuisances as it stood at common law. People v. Kings County Iron Foundry, 209 N. Y. 207, 210,102 N. E. 598. To be reckoned as ‘considerable,’ the number of persons affected need not be shown to be ‘very great.’ People v. Kings County Iron Foundry, supra. Enough that so many are touched by the offense and in ways so indiscriminate and general that the multiplied annoyance may not unreasonably be classified as a wrong to the community. Public is the unisance whereby ‘a public right or privilege common to every person in the community is interrupted or interfered with,’ as by the obstruction of a public way. Wesson v. Washburn Iron Co., 13 Allen (Mass.) 95, 102, 90 Am. Dec. 181. Public also is the nuisance committed ‘in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong against the community, which may be properly the subject of a public prosecution.’ Wesson v. Washburn Iron Co., supra. Cf. Wood, Nuisances (2d Ed.) § 71, and cases cited.

Long ago it was adjudged that one dwelling in a city, who with the aid of a speaking trumpet made great noises in the nighttime to the disturbance of the neighborhood, must answer to the king. Rex v. Smith (1726) 2 Strange, 704. The precedent is not one to be hastily renounced in days when trumpets have a power unknown to a simpler age. Public also was the nuisance where works were so conducted that the air became impregnated with ‘noisome stinks and smells.’ Rex. v. White, 1757, 1 Burr. 333.

We have gone back to early days, but not for dearth of modern instances.

A piggery so maintained that ‘the occupation of the neighboring houses and passage over the adjacent highways' became ‘disagreeable, or worse’ was stigmatized by Holmes, J., as an indictable offense, with copious references to precedents of early times and modern. Comm. v. Perry, 139 Mass. 198, 201, 29 N. E. 656, 657.

Shaw, C. J., thought the like of a fat-rendering factory defiling the surrounding air. Commonwealth v. Brown, 13 Metc. (Mass.) 365.

The ruling was the same, and pronounced by...