Tenney v. Liberty News Distributors, Inc.

• Decision Date: 29 May 1961
• Citation: 215 N.Y.S.2d 661,13 A.D.2d 769
• Parties: Charles H. TENNEY, as Corporation Counsel of the City of New York, Plaintiff-Respondent, v. LIBERTY NEWS DISTRIBUTORS, INC., et al., Defendants, G. I. Distributors, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 661

215 N.Y.S.2d 661

13 A.D.2d 769

Charles H. TENNEY, as Corporation Counsel of the City of New York, Plaintiff-Respondent, v. LIBERTY NEWS DISTRIBUTORS, INC., et al., Defendants, G. I Distributors, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 29, 1961.

R. L. Ellis, New York City, for plaintiff-respondent.

O. K. Fraenkel, New York City, for defendant-appellant.

Before BOTEIN, P. J., and BREITEL, STEVENS, EAGER and BERGAN, JJ.

PER CURIAM.

Order entered on February 3, 1961, which denied the defendant-appellant's motion for a severance and for a jury trial modified, on the law, on the facts and in the exercise of discretion, to the extent of granting a severance of the action, and is otherwise affirmed, without costs to either party. This appeal involves questions arising from action taken pursuant to Section 22-a, Code of Criminal Procedure. It should be noted that the constitutionality of Section 22-a has been upheld (Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 151 N.Y.S.2d 639, affirmed 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469). The defendant denies that the books and periodicals it distributes are lewd and obscene as those terms are used in Section 22-a. Since each publication must be separately considered and judged to ascertain if it falls within the cassification and prohibition of Section 22-a, it would appear likely that appellant would be prejudiced by a joint trial. Its application for a separate trial is granted. While Section 22-a, Code of Criminal Procedure, permits a procedure against the objects or articles, it could well be read in conjunction with Section 1141, Penal Law, which is directed against the offender who disseminates or distributes the offensive articles. The crime of sale, etc., of obscene prints and articles is classified as a misdemeanor. There is no constitutional right to a jury trial in misdemeanor cases (Constitution of the State of New York, Article VI, § 18). This is a proceeding in equity. As pointed out in Burke v. Kingsley Books, 208 Misc. 150, 142 N.Y.S.2d 735, 749, affirmed Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 151 N.Y.S.2d 639; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, 'a jury is not ordinarily a part of the judicial tribunal in equity cases' and 'a jury trial of certain issues may be granted on the equity side of the court, or denied, in the exercise of the chancellor's discretion (Civ.Prac.Act § 430)' (208 Misc....