
    SUPREME COURT — APPELLATE DIV.-FIRST DEPT.,
    May 16, 1913.
    PEOPLE v. MICHAEL H. LYNCH.
    (156 App. Div. 601.)
    (1.) Laboe on Sunday.
    
    A contractor engaged in repaving a street in a populous quarter of the city of New York, under a contract with the city which does not require him to work on Sunday, and who has not been directed so to do by any city official, is, if he continues the work on Sunday, guilty of a violation of section 2143 of the Penal Law, as the work is not one of necessity within the meaning of the statute.
    Ingbaham, P. J., dissented, with opinion.
    Appeal by the defendant, Michael H. Lynch, from a judgment of the Court of General Sessions of the Peace of the county of New York, rendered against the defendant on the 28th day of February, 1913, affirming a judgment of the City Magistrate’s Court convicting the defendant of a violation of section 2143 of the Penal Law.
    
      Francis Gilbert, for the appellant.
    
      Robert C. Taylor, for the respondent.
    
      
       See Notes on Sunday Laws, — Vol. 18, p. 407; Vol. 19, p. 41; Vol. 22, p. 43.
    
   Scott, J.:

The statute under which the defendant was convicted provides as follows: “ All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.”

The particular work upon which the defendant was engaged was repaving a street in a populous quarter of the city of New York. He was doing the work under a contract with the city, but his contract did not require him to prosecute the work on Sunday, nor had he been directed so to do by any city official. There are doubtless many cases in which the prosecution of public works on Sunday is needful for the good order, health or comfort of the community, and, therefore, permissible under the statute, but this is not, in our opinion, such a case.

If it had appeared that any city official, charged with the conservation of the good order, health or comfort of the community, had directed the defendant to proceed with the work on Sunday, we are disposed to think that he would have been absolved from the imputation of a criminal intent if he had complied with the direction.

No such justification appears in the present case, and the defendant in pursuing the work acted upon his own responsibility at the peril of being able to show to the satisfaction of the court that the work was in fact one of necessity. In this he has failed.

The judgment of conviction is affirmed.

McLaughlin, Laughlin and Clarke, JJ., concurred; In-graham, P. J., dissented.

Ingraham, P. J.

(dissenting) :

I dissent. I think that when a city street has to be repaved, depriving the public of the use of the street and exposing the city to the danger of liability because of the dangerous condition of the street while repaving is being conducted, that it is a work of necessity within the exception specified in section 214*3 of the Penal Law. That section prohibits all labor on Sunday “ excepting the works of necessity and charity,” and “ in works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.” We all know the interference with travel and the discomfort and annoyance of the community which are involved in tearing up the pavement of a city street, and any work that will reduce that discomfort and annoyance to a minimum is distinctly in the public interest, and is, I, therefore, think, a work of necessity within the meaning of this section of the Penal Law.

The prevailing opinion recognizes that “ if it had appeared that any city official, charged with the conservation of the good order, health or comfort of the community, had directed the defendant to proceed with the work on Sunday, * * * that he would have been absolved from the imputation of .a criminal intent if he had complied with the direction.” .1 do not understand that the question of the .necessity of work of this kind it to be determined by “ any city official.” The work of repaving a city street is either prohibited by the statute or it is not. If it is, no direction by “ any city official ” would override the statute; if it is not, the defendant is not guilty of the offense charged.

I think, therefore, the judgment should be reversed and the defendant discharged.

Judgment affirmed.  