
    The City of Buffalo, Appellant, v. Peter Smith et al., Respondents.
    (Superior Court of Buffalo — General Term,
    May, 1894.)
    In an action to recover a penalty for violation of a city ordinance, the burden of proof rests upon the city.
    A song or performance upon a musical instrument by the proprietor of a saloon, not intended to draw or secure an audience from the public, is not a violation of an ordinance prohibiting the keeping of a place for the sale of liquors at which concerts or entertainments, consisting of singing and music only, are allowed without payment of a license fee.
    This is an appeal by the plaintiff from a judgment of the Municipal Court of Buffalo, dismissing its complaint against the defendants for an alleged violation of section 1 of chapter 34 of the ordinances of the city of Buffalo.
    
      George M. Browne, for appellant.
    
      William Armstrong, for respondents.
   White, J.

The defendants are the proprietors of a saloon ' at Ho. 492 Michigan street, in this city, licensed to sell ale, beer and liquors at retail. By the ordinance in question it is, among other things, provided that no person shall carry on a place operated under a license for .the sale of ale, beer and liquors at retail in which concerts or entertainments, consisting of singing and music only, are allowed, until they shall have paid to the city the sum of fifty dollars a year as a fee "for the privilege of giving such concerts or entertainments. The defendants have a sitting room which adjoins their bar room, and in this sitting room there is a piano. The offense charged against the defendants is that on a certain evening in August last, between nine and ten o’clock, the defendant Decker played a tune upon that piano, and that two ladies and one gentleman sat with the defendants in the sitting room and listened to the music. The dismissal of the complaint by the Municipal Court was right for two reasons :

First. It was incumbent upon the city to prove that the defendants had failed to pay the fee which entitled them to give concerts or entertainments in their saloon, assuming that the performance of Decker constituted a concert or entertainment within the meaning of the ordinance, before it could ask for a conviction at the hands of the court, and no evidence tending to prove that fact was offered. Mo presumption existed in favor of the city that the fee had not been paid, or that the defendants were violating a penal statute or ordinance.

The burden of proving that the defendants had been guilty of a wrongful act was on the city. Blatz v. Rohrbach, 116 N. Y. 450.

Second. The performance by the defendant Decker was not a concert or entertainment within the meaning of the ordinance. The two words “ concert ” and “ entertainment,” as used in the ordinance, are, as we think, intended to describe the same thing, namely, a public performance of music in which several singers or instrumentalists, or both, participate, or at any rate a public performance of music intended to secure patrons for the saloon. A song, or performance upon a musical instrument by the proprietor of a saloon, not intended to draw or secure an audience from the public, is not a violation of any law, nor can it be said that the peace and good order of society requires the suppression of the musical instinct in the particular class of individuals who may be engaged in the business of selling ale, beer and liquors at retail. For aught that appears from the record in this case, the musical performance complained of by the city may have been private and devotional, and intended only for the immediate families of the defendants.

The judgment appealed from should be affirmed, with costs..

Titus, Ch. J., and Hatch, J., concur.

Judgment affirmed, with costs.  