
    The United Vaudeville Company, Plaintiff, v. Henry C. Zeller, et al., Defendants.
    (Supreme Court, Erie Special Term,
    February, 1908.)
    Sunday — Sabbath breaking — Public sports — Shows — Moving pictures.
    A moving picture show open to the general public, to which an admission fee is charged, giving numerous exhibitions in a hall or theater located on the principal street of a city in close proximity to places of worship, comes within the provisions of section 259-277 of the Penal Code prohibiting all public shows on Sunday which are serious interruptions of the repose and religious liberty of the community, and police interference with such exhibitions will not be restrained by injunction.
    Application for a temporary injunction restraining defendants, the police commissioners of the city of Buffalo, from closing on Sunday the theatre of plaintiff on Main street in the city of Buffalo where moving picture shows are presented.
    Eugene L. Falk, for plaintiff.
    John T. Ryan, City Attorney, for defendants.
   Pound, J.

The Penal Code (§§ 259-277) prohibits the doing on Sunday of certain specified acts which are declared to be “ serious interruptions of the repose and religious liberty of the community.” Penal Code, § 259.

The doing of no act on Sunday is prohibited except for the reason that the Legislature deems that the doing of such act is an interruption of the repose and religious liberty of the community, but such repose is deemed to be interrupted by the doing of certain of such prohibited acts, however quietly said acts may be done.

All labor on Sunday, excepting the works of necessity or charity, is prohibited. § 263. All trades, manufactures, agricultural or mechanical employments are prohibited on Sunday, except that such works of necessity are permitted as may be performed on that day so as not to interfere with the repose and religious liberty of the community. § 266.

All public traffic on .Sunday is prohibited, with certain exceptions deemed to be needful to the comfort of the community and not interrupting its repose. § 267.

All theatrical performances on Sunday are prohibited. § 277.

“All shooting, hunting, fishing, playing, horse-racing, gaming or other public sport, exercises or shows” are prohibited upon Sunday; also all noise disturbing the peace of the day. § 265.

It is claimed on this hearing that a moving picture show, open to the general "public, to which an admission fee is charged, giving numerous exhibitions daily in a hall or theatre located on the principal street of the city, in close proximity to places of worship, does not come within any of the prohibited acts above set forth, and that it may be lawfully opened on Sunday. On motions for preliminary injunctions in the First Judicial District, it has been held that such moving picture shows are not “ public shows ” within the meaning of section 265 of the Penal Code, and injunctions have been granted restraining police interference therewith on Sunday. On like motions in the Second Judicial District the contrary has been held, and the injunctions have been denied.

It has been held that the public shows ” prohibited by section 265 are only those which are out-door in public view. Keith & Proctor Amusement Co. v. Bingham, N. Y. L. J., Jan. 22, 1908.

It has not been clearly demonstrated why the Legislature should have prohibited all out-door public shows and also the performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or other dancing, wrestling, boxing, sparring contest, trial of strength, or any aerial, equestrian or dramatic performance or exercise, or any performance or exercise, of jugglers, acrobats, club perfoimances or rope, dancers on Sunday, and provided that aiding in such performances by advertisement or otherwise should be a misdemeanor, and that every person who leases any place for the purpose of such performance is guilty of a misdemeanor, (§ 277) and should at the same time have intended to permit a moving picture show to open its doors on Sunday.

A fair construction of sections 259-277 of the Penal Code leads to the conclusion that all public shows are prohibited as “ serious interruptions to the repose and religious liberty of the community.”

The courts have repeatedly held that ball playing on Sunday, for which an admission is charged, is a public' show, whether noise actually disturbs the peace of the day or not, because the statute presumes that such ball playing interrupts the repose of the community. People v. Poole, 44 Misc. Rep. 118.

That seems to be the case with this plaintiff. It gives a “ Public Show,” and it is to be presumed that such act if done on Sunday interrupts the repose of the community.

Motion denied.  