
    The People of the State of New York, Respondent, v. Joseph Adler, Appellant.
    Second Department,
    July 28, 1916.
    Crime — Sabbath breaking—operation of shoe factory on Sunday — proof justifying conviction—Penal Law, sections 2143, 2144 and 2146 construed — labor by person who observes other day as holy time —manufactures prohibited in any event.
    A person may be convicted of a violation of section 2143 of the Penal Law, prohibiting labor on Sunday, although he performed no personal “labor,” if in fact, being the proprietor of a shoe manufactory, he was present at his factory and engaged in overseeing and carrying on his business on Sunday.
    Where a defendant, charged with laboring on Sunday, invokes the protection of section 2144 of the Penal Law, it is incumbent upon him to show not only that he uniformly keeps another day of the week as holy time, and does not labor on such days, but also that the labor complained of was done in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.
    Where the indictment charges the defendant, not with performing servile labor on Sunday, but with having publicly conducted a shoe factory on that day, using both machinery and individual labor, he may be properly convicted of a violation of section 2146 of the Penal Law, prohibiting trades, manufactures and mechanical- employments on Sunday. And it is immaterial that the information charges a violation of section 2143 of the Penal Law, as this may be disregarded as surplusage.
    "The protection afforded by section 2144 of the Penal Law to persons who observe another day of the week as holy time has no application to violations of section 2146, forbidding trades, manufactures and mechanical employments on Sunday. Section 2144 of the Penal Law has reference only to the servile labor specified in section 2143.
    Appeal by the defendant, Joseph Adler, from a judgment of the Court of Special Sessions of the City of New York, Kings county, rendered against him on the 11th day of April, 1916, convicting him of the crime of Sabbath breaking in violation of section 2143 of the Penal Law.
    
      Isaac Siegmeister, for the appellant.
    
      Harry G. Anderson, Assistant District Attorney [Harry E. Lewis, District Attorney, with him on the brief], for the respondent.
   Rich, J.:

The defendant is the proprietor of a factory for manufacturing boots and shoes on Atlantic avenue, in the borough of Brooklyn. On April 10, 1916, an information was presented to a Magistrate’s Court, in said borough, in which appellant was charged with having, on Sunday, April 9, 1916, at his said place of business, publicly conducted “ a shoe factory by having the machines in operation, and the operators working, thereby making a loud noise so as to interfere with the repose and religious liberty of the community contrary to and in violation of the statute in such case made and provided, in violation of Section 2143 Penal Law.” The defendant was arrested, and upon his trial all of the elements constituting a violation of section 2143 of the Penal Law were proven without contradiction. The defendant testified that he never operated his factory on Saturday, which day he observed as his Sabbath, but kept his factory open and running on Sundays. He was convicted, and now contends that it was not proven that he personally “labored ” on Sunday, April ninth. This contention is without merit. Concededly he was present at the factory and engaged in overseeing and carrying on his business exactly the same as on week days, and this is sufficient to bring him within the prohibition of the statute. Conducting, overseeing and carrying on of his business in all its details was engaging in and performance of “labor” within the meaning of that word as used in section 2143 of the Penal Law. He further contends that, inasmuch as he uniformly kept Saturdays as holy time, and closed his factory and did not labor on Saturdays, he could not, because of the provisions of section 2144 of the Penal Law, be legally convicted of the offense with which he was charged, there being no proof “that the noises complained of caused a ‘ serious interruption of the repose and religious liberty of the community.’ ”

Section 2144 provides: “ It is a sufficient defense to a prosecution for work or labor on the first day of the week that the defendant uniformly keeps another day of the week as holy time, and does not labor on that day, and that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.” The answer to that contention is that two witnesses living in the immediate vicinity of the factory testified that they were disturbed and annoyed by the manner in which the work was done on Sundays, because of the noise arising therefrom, and that there was a Sunday school in the immediate vicinity. It was incumbent on the defendant, in order to bring himself within the exception contained in section 2144, to show not only that he uniformly keeps another day of the week as holy time and does not labor on such days, but he must go further and prove that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.

There is another reason why the appellant cannot succeed on this appeal. The information does not charge the defendant with performing servile labor on Sunday. On the contrary, it charges him with having publicly conducted a shoe factory on Sunday, using in the operation both machinery and individual labor, which is a violation of section 2146 of the Penal Law, which prohibits “All trades, manufactures, agricultural or mechanical employments upon the first day of the week,” except works of necessity. The information charges an offense, so conducted as to interfere with the “repose and religious liberty of the community contrary to and in violation of the statute in such case made and provided,” and is complete without the addition of the words “in violation of Section 2143 Penal Law,” which maybe disregarded as surplusage. The addition' of these words did not prejudice the defendant, as the facts are fully and correctly charged, under either section constituting “ Sabbath breaking.” The defendant was advised of the acts relied upon to constitute the alleged “violation of the statute,” and the unnecessary designation of the section did not limit the prosecution to the acts therein stated. The acts prohibited by section 2146, as charged in the information, were proven and the provisions of section 2144 have no application to such offense. They have reference only to the servile labor specified in section 2143, and constitute no defense to the offense of conducting on Sunday “trades, manufactures, agricultural or mechanical employments” prohibited by section 2146. (Anonymous, 12 Abb. N. C. 455; Commonwealth v. Has, 122 Mass. 40; Commonwealth v. Kirshen, 194 id. 151; Commonwealth v. Starr, 144 id. 359.)

The judgment of conviction of the Court of Special Sessions is affirmed.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.  