
    SUPREME COURT—APP. DIV.—FIRST DEPT.,
    April, 1909.
    MATTER OF CITY OF NEW YORK (MORRIS THEATRICAL LICENSE).
    (131 App. Div. 767.)
    (1) . Sunday Law—Theatrical Performance—Greater N. Y. Charter, Sec. 1481—Revocation of License.
    Section 1481 of the Greater New York charter (Laws of 1897, chap. 378), prohibited certain theatrical performances on Sunday and provided that any such performance should of itself forfeit and annul the theater license. Section 1476, which was in the same title as section 1481, provided that any license might be annulled by any judge of a court of record upon proof of the violation of any of the provisions of that title. The revision of the charter, made by Laws of 1901, chapter 466, provided that all sections of the charter of 1897 relating to the licensing of public amusements should continue in force until regulated by ordinance and that upon the passing of any ordinance regulating the matters provided for in any of the sections such section should cease to have any force or effect. In 1907 an ordinance was passed regulating the matters provided for in section 1481. This ordinance prohibited theatrical performances on Sunday with certain exceptions, and provided that any person violating the provisions of said section should be subject to a penalty of $500 to be recovered by the corporation counsel, and on the recovery of a judgment for the penalty the license obtained for the theater should be of itself annuled.
    
      Reid, that section 1481 was repealed by the passage of the ordinance; that the ordinance not having been inserted in the place of said section, the provisions of section 1476 no longer apply to violations of the Sunday law, and that the only way to revoke a theater license for a violation of such ordinance is by obtaining a judgment for the penalty prescribed.
    (2) . Same—Appeal.
    Where in a proceeding to revoke a theater license for a violation of the Sunday law a judge, acting under section 1476, providing that the judge shall hear the proofs in the case and determine the same summarily and that no appeal can be taken from his determination, appoints a referee to take proofs, the order of reference is appealable, for it affects substantial rights of the "party. On such appeal the whole question is before the court.
    
      Appeal by William Morris, Incorporated, from an order of the Supreme Court, made in the Mew York Special Term and. entered in the office of the clerk of the county of Hew York on the 9th day of February, 1909.
    
      George M. Leventritt, for the appellant.
    
      Theodore Connoly, of counsel (Terence Farley with him on the brief), Francis K. Pendleton, Corporation Counsel, for the respondent.
   Clarke, J.:

This is an appeal from an order of the Special Term upon an application hy the city to revoke a license issued to William Morris, Incorporated, for the American Theater, upon the ground of the violation of an ordinance .passed December 17, 1907, by the giving of Sunday performances alleged to be prohibited by said ordinance. The order appealed from overruled certain preliminary objections made to the jurisdiction of the court, denied the motion to dismiss the proceedings, allowed _ the respondent time in which to serve an answer to the petition, and appointed a referee to take proofs and report his opinion. The preliminary objection, in brief, is that there is no existing law providing for a summary proceeding to obtain a revocation of a theatrical license for a violation of the ordinances in respect to Sunday performances, but that it is now provided that such revocation shall follow and depend upon a judgment for the recovery of a penalty of $500, which the corporation counsel is authorized to prosecute for and recover.

The Greater Mew York charter (Laws of 1897, chap. 378), in chapter 22, title 2, under the head “Amusements. Public Exhibitions to be Licensed,” provided in brief as follows: Section 1472, that it should not he lawful to publicly exhibit any interlude, tragedy, comedy, etc., until a license for the place of such exhibition should be first had and obtained. By section 1473 (as amd. by L. 1901, ch. 412), the police department was authorized to grant such license for the sum of $500; anyone who should neglect to take out such license and give such an exhibition was subjected to a penalty of $100 for every such exhibition, to be prosecuted and sued for and recovered in the name of the city. Section 1476, “Revocation of license. * * "* Any license provided for by the preceding sections may be revoked and annulled by any judge or justice of any court of record in said city upon proof of a violation of any of the provisions of this title; such proof shall be taken before such judge or justice, upon notice of not less than two days, to show cause why such license should not be revoked; said judge or justice shall hear the proofs and allegations in the case and determine the same summarily; and no appeal shall be taken from such determination; and any person whose license shall have been revoked or annulled shall not thereafter be entitled to a license under the provisions of said sections; on any examination before an officer, pursuant to a notice to show cause, as aforesaid, the accused party may be a witness in his own behalf.” Section 1477 provided that any person violating sections 1472 and 1473 should be deemed guilty of a misdemeanor, and upon conviction should be punished by imprisonment in the penitentiary for a term not less than three months, nor more than one year, or by a fine of not less than $100 nor more than $500, or by both such fine and imprisonment. By section'1478 it was made the duty of the police to arrest any one violating the provisions of sections 1472 and 1473 By section 1479 the corporation counsel was authorized to apply to the Supreme Court for an injunction against any person who should open or advertise te open any place in violation of section 1472 without having obtained the license provided for in section 1473. Section 1480 contained certain exemptions as to amateurs and exhibitions for charitable and religious purposes, etc. Section 1481 prohibited certain specified performances on Sunday, and provided that any person offending against the provisions of the section “shall he guilty of a misdemeanor and in addition to punishment therefor provided by law, shall be subject to a penalty of five hundred dollars, which penalty the corporation counsel of said city is hereby authorized in the name of The’ City of Eew York to prosecute, sue for and recover; in addition to which every such exhibition or performance shall of itself forfeit, vacate and annul and render void and of no effect any license which shall have been previously obtained by any manager, proprietor, owner or lessee consenting to, causing or allowing or letting any part of a building for1 the purpose of any such exhibition or performance.” By section 1482 minors under fourteen years were not to be admitted to any theatrical exhibition held in the evening, unless accompanied by an adult person; a violation of its provisions was made a misdemeanor. Section 1483 prohibited the selling of beer, wine, or strong or spirituous liquors in any such place of exhibition or the employment of females to wait on or attend in any manner or to furnish refreshments to the audience at any such exhibition. Section 1484 provided that no license for any exhibition given in violation of the preceding section should be granted, and any and every exhibition or performance at which any of the provisions of said section shall be violated shall of itself vacate and annul any license previously obtained. Section 1485 provided that any person violating any of the provisions of the two preceding sections shall be deemed guilty of a misdemeanor and punishable as prescribed. Section 1486 gave the right for the police to enter and arrest; and section 1487 provided for a diagram on the play bill and the marking of the doors and exits, and a noncompliance subjected the offender to a penalty in the sum of fifty dollars to be sued for and recovered in the same manner as violations of the building laws should be sued for and recovered.

When the charter was revised, by chapter 466 of the Laws of 1901, it did not reincorpórate in terms title 2 of chapter 22 of the charter of 1897: “Amusements. Public Exhibitions to be Licensed.” But by “Section Three” of chapter 466 of the Laws of 1901 it was provided as follows: “The several sections of the said chapter three hundred and seventy-eight of the laws of eighteen hundred and• ninety-seven, the numbers and titles of which are set forth in the Second Schedule annexed to this act entitled ‘Second Schedule. Sections to remain in force until changed by the Board of Aldermen/ are and each of them is hereby, continued in full force and effect until the board of aldermen as constituted by the foregoing provisions of this act shall pass ordinances regulating the matters provided for in the said several sections mentioned in the Second Schedule, all of which ordinances the said board of aldermen is hereby expressly empowered to pass. Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any force or effect, and the same is and shall be repealed.” The second schedule so referred to as sections to remain in force until changed by the board of aldermen, included all of the sections under title 2 of chapter 22 of the charter of 1897, being sections 1472 to 1487 inclusive.

On the 17th of December, 1907, the board of aldermen adopted, and on December 19, 1907, the mayor approved, the following ordinance entitled, “An ordinance regulating the matters provided for in sec. 1481 of the Laws of 1897, as amended by chapter 466 of the Laws of 1901, known as the Greater New York Charter. Section 1481 being one of the sections specified under the title ‘The Second Schedule.’ ‘Sections to remain in force until changed by the board of aldermen.’ ” This ordinance continued the prohibition against certain exhibitions on Sunday with a proviso that, “Nothing herein contained shall be deemed to prohibit at any such place or places on the first day of the week, commonly called Sunday, sacred or educational, vocal or instrumental concerts, lectures, addresses, recitations and singing, provided that such above mentioned entertainments shall be given in such a manner as not to disturb the public peace, or amount to a serious interruption of the repose and religious liberty of the community.” And then provided, “Any person wilfully offending against the provisions of this section * * * and every owner or lessee of any building * * * who shall lease or let out the same for the purpose of any such exhibition or performance * * * shall be subject to a penalty of five hundred dollars, which penalty the corporation counsel of said city is hereby authorized, in the name of the city of New York, to prosecute, sue for and recover; and on the recovery of a judgment for the penalty herein provided for against any manager, proprietor, owner or lessee, consenting to or causing or allowing, or letting any part of the building for the purpose of any exhibition or performance prohibited by this ordinance, the license which shall have been previously obtained by such manager, proprietor, owner or lessee, is of itself vacated and annulled.”

As section 1416 provides for a summary proceeding for the revocation of a license, “upon proof of a violation of any of the provisions of this title ” and as section 1481, which was the provision of that title which prohibited certain Sunday performances, has been repealed by the board of aldermen in conformity with the power granted to said board to legislate upon such subject by the legislature, under the provisions of “Section Three” of chapter 466 of the Laws of 1901, there does not now exist any section in said title, to wit, title 2 of chapter 22, governing or controlling Sunday performances. The legislature, while it might confer power upon the board of aldermen to pass ordinances upon the subjects enumerated in said title, could not confer power upon the board of aldermen to amend, add to or change the charter. While the act of 1901 provided for a continuation of the said provisions until the board of aider-men acted, it was expressly provided that, “Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any' force or effect, and the same is and shall be repealed.”'

It follows that section 1481 has been repealed by the passage of the ordinance, but that ordinance has not been inserted in place of section 1481 in the title from whence it was taken. Therefore, there being left in that title no provisions as to Sunday performances, section 1476 of that title can no longer be held to apply to violations of the Sunday Law, but must be confined in its application to the other sections of said title remaining unrepealed. The result follows that the only way in which a license is to be revoked for violations of said ordinance, is upon the obtaining of a judgment for the penalty prescribed. Such judgment in and of itself revokes and vacates, said license. The difference between section 1481 and the new ordinance is that under section 1481 the prohibited performance itself forfeited, vacated and rendered of no effect the license. Under the new ordinance the judgment accomplished that result. A summary proceeding was provided for in section 1476 to reach a violation of section 1481, while under the new ordinance the revocation is an incident of a judgment in a civil action, or as the result of a criminal prosecution under the Penal .Code. This leads to the conclusion that the Special Term had no jurisdiction to entertain this proceeding. But the respond-c nt claims that the order is not appealable, claiming that as by section 1476 of the original charter, providing for the summary proceeding, it is provided that no appeal shall be taken from such determination, it follows that an order overruling preliminary objections to the proceeding as without jurisdiction cannot be appealable, and that the only way to test the question of jurisdiction is by writ of prohibition, the method employed in People ex rel. Hammerstein v. O’Gorman, 124 App. Div. 222.

The order appealed from not only overrules the preliminary objections, but appoints a referee. Section 1356 of the Code of Civil Procedure provides that an appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right made in a special proceeding at a Special Term or Trial Term of the Supreme Court, or made by a justice thereof in a special proceeding instituted before him pursuant to a special statutory provision. Section 1361 of the Code provides: “This title does not confer the right to appeal from an order in a case where it is specially prescribed by law that the order cannot be reviewed.”

The summary proceeding provided by section 1476 of the original charter is a special statutory proceeding. That section provides that said judge or justice shall hear the proofs and allegations in the case and determine the same summarily. There is no provision therein contained for the appointment of a referee, and such appointment would seem to do violence to the language and intent of the statute. A summary power granted to a justice who, it is provided, shall hear the proofs and allegations, and from whose determination there is no appeal, would seem to negative the power to appoint a referee. The unauthorized appointment of a referee with the requirement that the parties shall go before him to make their proofs, with liability for the expenses of said reference, undoubtedly affects a substantial right. As the section of the charter does not contemplate the appointment of a referee, it is not specially prescribed by law that such an order cannot be reviewed, and so section 1361 of the Code does not apply. The right to appeal is, therefore, conferred by section 1356 (supra), and, therefore, we think, the whole question is properly before this court.

It follows, therefore, that, the order appealed from should be reversed and the proceeding dismissed, with ten dollars costs and disbursements to the appellant.

Ingraham, Laughutn, Houghton and Scott, JJ., concurred.

Order reversed and proceeding dismissed, with ten dollars costs and disbursements. .  