Whitestone Bridge Drive-In Theatre, Inc. v. O'Connell, DRIVE-IN

• Decision Date: 06 July 1961
• Docket Number: DRIVE-IN
• Citation: 217 N.Y.S.2d 371,14 A.D.2d 51
• Parties: WHITESTONE BRIDGETHEATRE, INC., Plaintiff-Respondent, v. Bernard J. O'CONNELL, Commissioner of Licenses of the City of New York, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 371

217 N.Y.S.2d 371

14 A.D.2d 51

WHITESTONE BRIDGE DRIVE-IN THEATRE, INC., Plaintiff-Respondent, v. Bernard J. O'CONNELL, Commissioner of Licenses of the City of New York, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 6, 1961.

Beatrice Shainswit, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Charles H. Tenney, Corporation Counsel, New York City, attorney), for appellant.

Thomas H. McManus, New York City, of counsel (Lynch & McManus, New York City, attorneys), for respondent.

Before RABIN, J. P., and VALENTE, STEVENS, EAGER and STEUER, JJ.

PER CURIAM.

This is appeal by defendant from a judgment entered August 30, 1960, pursuant to an order entered July 18, 1960, which granted plaintiff's motion for summary judgment in an action for a declaratory judgment and an injunction.

Certain facts are not in dispute. Plaintiff is the owner and operator of a drive-in motion picture theatre which can accommodate 1,500 cars. The theatre is properly licensed under the provision of Article 4 of Chapter B32 of the Administrative Code of the City of New York.

In conjunction with the theatre plaintiff maintains or operates a fenced-in playground containing a slide, swings, scooter table, a power-driven carousel or merry-go-round seating 12 children, and a power-driven ferris wheel, also seating 12 children. These facilities are available for the use of children under the age of 12 years who accompany patrons. No extra charge is made beyond the regular admission fee for the adults, and children under the age of 12 are not admitted unless they are in the company of adults. The playground opens when the box office opens and is closed fifteen minutes before the first picture showing begins. The carousel and ferris wheel are not permanently attached to the ground. When the theatre closes in the fall, to reopen in the spring, the playground is closed and the amusement or recreation devices dismantled.

The purchase of a ticket is a prerequisite to admission and the use of the playground.

The issue here is whether the carousel and ferris wheel constitute a common show within the meaning of the statute, for which a license is required.

Appellant asserts that it is a common show and a license is required.

Plaintiff-respondent asserts that the amusement devices are gratuitously maintained as a mere incident to its business and such maintenance does not constitute a common show.

Section B32-41.0(a), Administrative Code, provides:

'It shall be unlawful for any person to act as a common show operator without a license therefor.'

Article 5, Chapter 32, of the Administrative Code defines in part common shows for which licenses are required. Section B32-40.0(a) of such article states that:

'Whenever used in this article, the term 'common show' shall include:

'(1) a carousel, ferris wheel, gravity steeplechase, chute, scenic cave, bicycle carousel * * * merry-go-round * * *.'

Subdivision (2) for the same section refers to certain paraphernalia or devices, however operated, 'in or upon which a game of skill or amusement may be played by one or more persons, singly or collectively, upon the payment of a fee, charge or other consideration * * *.' (Emphasis added.) It should be noted that subdivision (1) imposes no such condition or requirement as payment of a fee.

Subdivision (b), § B32-40.0, states:

'Whenever used in this article, the following terms shall mean and include: 1. 'Common show operator'. Any person who maintains or operates a common show.'

The presence or absence of any requirement for payment of a separate fee by the user of the devices herein involved is not determinative of the issues. See, Weistblatt v. Bingham, 58 Misc. 328, 10. N.Y.S. 545. The devices involved are for the use of children of tender years. They are power driven, as such subject to mechanical or other failure, with possible harm to their infant users. The legislative body evidently considered and determined that devices of this nature constitute a potentially dangerous instrumentality and should be licensed so as to be subject to supervision and control. If we attempt to create...