
    SUPREME COURT-APP. DIVISION—SECOND DEP.,
    June 5, 1908.
    THE PEOPLE v. THOMAS DRUM.
    (127 App. Div. 241.)
    (1.) Disorderly House—Evidence.
    One employed in the management of a licensed hotel should not he convicted of keeping a disorderly house on the testimony of two policemen showing that each took the same woman to the hotel, within a short interval of time and were assigned to a room, where there is nothing to show that the defendant knew that the same woman accompanied each, or that they were not man and wife.
    (3.) Same.
    Evidence sufficient to show that a private house is a house of assignation may he insufficient in the case of a hotel.
    Hooker and Miller, JJ., dissented.
    Appeal by the defendant, Thomas Drum, from a judgment of the court of Special Sessions of the Peace of the Second Division of the city of Hew York, rendered on the 21st day of February, 1008, convicting the defendant of keeping a disorderly house.
    The defendant was found guilty under an information filed against him by the District Attorney of Kings county for violation of section 322 of the Penal Code in three counts, the first charging him with keeping a “ house of ill fame and assignation,” the second with keeping a disorderly house, and the third with keeping a house of public resort to which he invited and procured men and women to resort night and day, and there to remain “ drinking, tippling, gambling, rioting, disturbing the peace, whoring and misbehaving themselves.”
    
      John J. McGinniss, for the appellant.
    
      Peter P. Smith [John F. Glarke with him on the brief], for the respondent.
   Gaykos, J.:

The defendant is employed to assist in the management of a hotel in the borough of Brooklyn which is licensed under the Liquor Tax Law. The restaurant and dining-room will seat 200 people at table, and there are 18 bedrooms upstairs. The evidence against the defendant is by two policemen. The first testifies that he came to the hotel in citizen’s clothes with a woman at about 7:30 p. m., registered with her at the desk as John Wise and wife in the presence of the defendant who was in charge, and that they were assigned by him to bedroom 6, to which he conducted them; and that after staying in the room about 30 minutes he and the woman went out of the hotel. He says the woman was not veiled. The second policeman testifies that some time before 9 p. m. the same day he registered with the same woman as William Porter and wife, in the presence of the defendant, who assigned and conducted them to room 15. He says the woman was veiled, and also that she went upstairs in advance of him and was not present when he registered. The first policeman says that he saw the second go into the hotel with the woman 15 or 20 minutes after he came out. They and the woman were; acting in concert by direction of their captain.

The evidence was insufficient to prove that the hotel was a disorderly house, or house of assignation. There was no evidence that it was a disorderly place, or frequented by disorderly or vicious people, or of any unlawful doings in it. The only evidence on the subject, which was given by the defendant, was to the contrary.

It is an indictable offense at common law for the keeper of an inn or hotel to refuse to receive any guest and entertain him with meals or lodging or both, and our Penal Code (§ 381) makes it a misdemeanor to do so, without just cause or excuse.” ' Evidence that would suffice to show that a private house was a house of assignation might entirely fail to prove that of a licensed inn or hotel, which is the case with the evidence here. The keeper of an inn or hotel is bound to receive and accommodate those presenting themselves as guests at his peril. Ho can refuse them only for just cause or excuse. There was no evidence from which it could be found that the defendant knew that the same woman accompanied each of the policemen. The conviction seems to have been had on the general notion of the police that it suffices that men and women received as man and wife at a hotel are not such in order to convict the proprietor, regardless of whether he knew it. If that were so, the proprietors of our large hotels could be convicted of keeping houses of assignation every day. But it is not. What was done by the police against this hotel could probably be repeated in the case of most if not all of our hotels, fashionable or plain, high or low.

It is true that the first policeman testified in this case that he asked the defendant what name he would write in the register, and that the defendant responded “ put down John Wise, nobody will be the wiser,” and that he then took him and his woman to their bedroom and told them “ to have a good time ” as he was leaving them; but this is so inherently improbable that .we entertain no notion that it was credited by the trial court.

The judgment should be reversed.

•Tekks and High, JJ., concurred; Hooker and Miller, JJ., dissented.

Judgment of the Court of Special Sessions reversed and new trial ordered.

NOTE ON DISORDERLY HOUSES.

ELEMENTS OP CRIME.

A house which is a resort for immoral purposes is a disorderly house, though the public peace be not disturbed by it. People v. Erwin, 4 Denio, 129.

The principle of the rule that owner who rents house to be used as house of prostitution, is to be deemed to keep the same, applies to an agent who knowingly lets his principal’s property for such purpose. Lowenstein v. People, 54 Barber, 299.

Where the house of a person is the resort of prostitutes, plying their vocation with his knowledge, this constitutes a bawdy house. King v. People, 83 N. Y. 587.

A person who leases a house to be used as a house where people can have unlawful sexual intercourse, is guilty of keeping a disorderly house. People v. O’Melia, 10 N. Y. Cr. Rep. 350.

It is a misdemeanor to maintain a place at which opium is smoked by other persons, but not at which the maintainer alone smokes. People v. Reed, 14 N. Y. Cr. Rep. 326.

INDICTMENT OR COMPLAINT.

Indictment for keeping disorderly house not vitiated by charging in same count that it is kept as a bawdy house, a tippling house and a dancing house. Evidence of any one of these circumstances will sustain the count. People v. Carey 4 Park Cr. R. 238.

To support indictment, not necessary to show that because of noise, etc., it is a nuisance to neighborhood; enough if shown that it is so kept as to be injurious to morals. Barnesciotta v. People, 10 Hun. 137. Jacobowsky v. People, 6 Hun, 524.

What is a sufficient charge in indictment. Harwood v. People, 26 N. Y. 190.

Keeping a bawdy or gambling house indictable at common law. King v. People, 83 N. Y. 590.

The common-law remedy by indictment against a person keeping a bawdy house was not abolished or superseded by the provisions of the Code of Criminal Procedure as to disorderly persons. People ex rel. Van Houton v. Sadler, 97 N. Y. 148.

The meaning of the words “ houses of ill-fame ” is well understood and these words, of themselves, irrespective of any other description are sufficient in an indictment charging an officer with an omission of duty in respect thereto. People v. Herlihy, 16 N. Y. Cr. Rep. 235.

Complaint charging that defendant kept house or place for persons to visit for obscene and indecent purposes, by which the peace and comfort and decency of the neighborhood has been and is habitually disturbed, held sufficient. People v. Hulett, 39 N. Y. St. Rep. 646.

Indictment for keeping a disorderly house held sufficient. People v. Hatter, 22 N. Y. Supp. 688.

EVIDENCE.

The character of the inmates or frequenters is relevant as to whether a house is disorderly. People v. Manch, 24 How. Pr. 276; Kenyon v. People, 26 N. Y. 203; People v. Hulett, 38 St. Rep. 646.

Admissible, in order to prove the character of the house kept by defendant, to show that notorious prostitutes were found frequently there. Hence, evidence that women were arrested there and taken before a magistrate and convicted as such, is proper. Harwood v. People, 26 N. Y. 190.

On trial of owner for permitting premises to be occupied it was shown that he was in court when his tenant was convicted for keeping-the house, and that he had remarked that one tenant was as good as another as long as the rent was paid. Held, sufficient to charge him with knowledge. People v. Wallach, 39 St. Rep. 53, 115 N. Y. Supp. 226.

Where evidence shows that so-called opera house, licensed as a place of amusement, was so conducted that it became disreputable, that conduct of inmates was grossly indecent and calculated to corrupt morals, that peace and quiet of community was thereby disturbed, an indictment for keeping a disorderly house will be sustained. Berry v. People, 1 N. Y. Cr. Rep. 43.

Not necessary in prosecution of prostitute under Tenement house law, to show that place where act committed was a house of prostitution. People ex rel. Gaignat v. N. Y. St. Refuge, 16 N. Y. Cr. Rep. 275.

A police officer who has personal knowledge of the existence of a house of prostitution is bound to observe and inspect the house and to repress and restrain all unlawful conduct or practice therein, and arrest the person maintaining it, whether or no he knew of anybody else who could swear to the fact. People v. Glennon, 17 N. Y. Cr. Rep. 213.

PUNISHMENT.

On conviction of keeping, where evidence did not show actual personal knowledge, fine held sufficient. People v. Miller, 39 St. Rep. 737, 15 N. Y. Supp. 516.  