
    The People of the State of New York, Appellant, v. Edward Bink, Respondent.
    Third Department,
    May 8, 1912.
    Crime — appeal—judgment sustaining demurrer to indictment—public nuisance — sufficiency of indictment.
    In a criminal action the People may appeal from a judgment sustaining a demurrer to the indictment, although the decision gave the right to resubmit the case to the grand jury.
    
      An indictment charging the' defendant with creating a public nuisance, as defined in section 1530 of the Penal Law, is sufficient if it shows that the acts charged “annoyed” a considerable number of persons; it is not necessary to allege that they “ injured ” “ the comfort, repose, health or safety ” of such persons.
    Bbtts, J., dissented.'
    Appeal by the plaintiff, The People of the State of New York, from a-judgment and order of the County Court of Saratoga county rendered on the 21st day of November, 1911, sustaining the defendant’s demurrer to an indictment.
    
      William T. Moore, for the appellant.
    
      Leary & Fullerton [ Walter A. Fullerton of counsel], for the respondent.
   Smith, P. J.:

The mdictment challenged charged that the defendant, near a public highway in the town of Stillwater, Upon which said public highway a large number of people were daily passing and repassing, and in the vicinity and near the dwelling houses of a large number of people then and there living and residing, did unlawfully keep, maintain and conduct a certain building, stove, boiler, cauldron, place and establishment, and did cause and procure to be kept, maintained and conducted a . certain building, stove, boiler, cauldron, place and establishment for the purpose of cooking, boiling, melting, trying, and rendering putrid and decayed meat, bones and tallow, and did then and there cook, boil, melt and render large quantities of putrid and decayed meat, bones and tallow, by reason of which unwholesome gases, vapors, odors and stenches were emitted, so that the air at different times became filled and impregnated with the smokes, gases, vapors, odors and stenches, and' was thereby rendered corrupt, offensive and unwholesome, and that by reason thereof the defendant did seriously annoy a considerable number of persons then and there passing and repassing upon said public highway and then and there living and residing in the vicinity of said building, stove, etc. The indictment then named several persons who were. annoyed thereby. To this indictment the defendant demurred, and his demurrer has been sustained by the court below, and from the order sustaining the demurrer this appeal is taken by the People.

The first question raised is as to the right of the People to appeal. In the decision sustaining the demurrer the right was given to resubmit the case to the grand jury, and it is claimed that with the privilege of resubmission the People have no right to appeal. The right to appeal is given by section 518 of the Code of Criminal Procedure, which authorizes an appeal by the People “upon a judgment for the defendant, on a demurrer to the indictment.” This right of appeal is not conditioned upon the fact that no right of resubmission is given. The appeal is not from the order allowing or directing a resubmission, but from the order and decision sustaining the demurrer to the indictment. If that indictment be deemed by the district attorney to be a good one we see no reason why the matter should be returned to the grand jury, or why the right to resubmit should take from the People the right of appeal which is given unconditionally by the statute above cited. The case of People v. Zerillo (200 N. Y. 443), cited by the defendant, was an appeal by “ the defendants ” from an order of resubmission, and not an appeal by the People from a decision sustaining a demurrer to an indictment.

This brings us to the merits of the appeal. By section 1530 of the Penal Law a public nuisance is defined as the unlawful doing of an act which “ annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons.” The demurrer has been sustained on the ground that the allegation is simply that the acts of the defendant “annoyed” a considerable number of persons, omitting any allegation that such acts “injured” “the comfort, repose, health or safety” of such persons. By reasonable interpretation, however, the acts become a crime within the statute when they annoy a considerable number of persons. To interpret the statute that such acts must annoy “the comfort, repose, health or safety ” of those persons would be an unnatural straining of the provisions of the act. Moreover, you cannot annoy a person without injuring his comfort or repose, and however strictly the statute should be construed the crime is fairly alleged, so as to give the defendant full notice of the • charge intended to be made against him, and any imperfection in its statement in no way tends to prejudice the substantial rights of the defendant upon the merits. (See People v. Helmer, 154 N. Y. 596; People v. Willis, 158 id. 392; People v. Lammerts, 164 id. 137.) We are of opinion that the demurrer was improperly sustained, and, therefore, that the order should be reversed and the demurrer overruled, with 'leave to defendant to plead anew.

All concurred, except Betts, J., dissenting.

Judgment reversed and demurrer overruled, with leave to defendant to plead anew.  