
    SUPREME COURT—APP. DIVISION—SECOND DEP.
    July 23, 1907.
    THE PEOPLE v. ERNEST W. BUTTS.
    (121 App. Div. 226.)
    (1) . Working- on Sunday—Penal Code § 266—New York Charter § 1409.
    The defendant, an engineer, charged with a misdemeanor under § 266 of the Penal Code by unnecessarily shifting freight cars on the Sabbath day in the city of New York, is entitled to the certificate authorized by § 1409 of the charter that the case be prosecuted by indictment instead of tried at Special Sessions. This because difilcult questions of law and intricate questions of fact having a far reacting effect may be involved.
    (2) . Same—Appeal.
    The defendant may appeal from a denial of such certificate to the Appellate Division, although the appeal is not specifically authorized by the charter.
    Appeal by the defendant, Ernest W. Butts, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 20th day of February, 1907, and entered in the office of the clerk of the county of Richmond.
    
      Howard 8. Gans, for the appellant.
    
      John J. Kenney, District Attorney, for the respondent.
   Jewels, J.:

This is an appeal from an order denying an application of the defendant for a certificate that it was reasonable that the charge against him should be prosecuted by indictment. The defendant was charged with a misdemeanor in violating section 266 of the Penal Code by working on a Sabbath day as an engineer on a locomotive engine attached to cars, in moving and shunting the cars from one track to another, making a noise and disturbing the peace of the Sabbath, the same not being a work of necessity. He was committed to await the action of the Court of Special Sessions. He gave bail, then applied for a certificate.

A misdemeanor is misconduct or offense inferior to a felony. As a rule, misdemeanors do not present difficult questions of law or intricate questions of fact. They are not necessarily punished by severe penalties. Though they may be prosecuted by indictment, yet a statutory assignment of criminal law work has committed the trials of misdemeanors in the first instance to the Court of Special Sessions, with the exclusion of libel, which exclusion is significant. This jurisdiction is subject to the power of certain judges to certify that it is reasonable that a charge of misdemeanor should be prosecuted by indictment. (Greater N. Y. Charter, § 1409.)

“ Reasonable ” is a generic word, difficult of adequate defiition; but I take it to mean, in such a case as this, just, proper, fair, equitable. So the question is whether it was just and proper that this charge should be tried by indictment, meaning a preliminary investigation by a grand jury and a trial by a court with a jury, and not by a Court of Special Sessions. Without reflecting upon any incumbent of that court, which numbers many competeflt men, presumably a more satisfactory trial of a cause which may present difficult questions of law and intricate questions of fact, and may be far-reaching in its effect as a precedent, would be afforded by such a certificate. I am clear that this is a proper case for a certificate. It appears that the work complained of was about a freight yard of a railroad, and incident to the carriage of freight. Even at first glance it is seen that the case raises a question of the necessity of such work, which may involve inquiry into the perishability of the freight, the necessity of moving live stock, of furnishing food to the markets, of moving cars which might block transportation, and many like matters. And it is more than likely that questions of law more or less important may be presented. Certainly a decision may be far-reaching in its effect, for it may ultimately become a precedent which will regulate the Sabbath day work of the railway companies of the State, and come home keenly to business and to labor. On the other hand, there is presented the possible violation of the policy of the State which has set apart the seventh day to the relaxation, rest and peace of the community, secured by a cessation of work.

While there is no specific provision in the charter authorizing an appeal, the right to review the decision of a single judge, when that involves a substantial right, is generally fundamental and deemed to exist rather than not to exist. (Matter of Brady, 69 N. Y. 215, 220.) This application is like unto a decision of a motion made for a change of venue, which has been held appealable, even in the absence of any specific provision therefor, in the Code. (People v. Sarvis, 69 App. Div. 604.) Moreover, if the learned court erred in the refusal of a certificate, I am not clear that there is any other manner of review. In People v. Wilber (15 N. Y. Supp. 435) the General Term of the third department held that it could not, upon an appeal from a judgment of the Court of Sessions, review the refusal of the county judge to grant a certificate as authorized by section 57 of the Code of Criminal Procedure.

I am of opinion that the order should be reversed and the certificate granted.

Hooker, Gaywor and Miller, JJ., concurred; Rich, J., taking no part.

Order reversed and certificate granted. 
      
       See Laws of 1901, chap. 466.—[Rep.
     