
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    March, 1912.
    THE PEOPLE ex rel. LILLIAN RYAN v. SUPT. STATE REFORMATORY.
    (149 App. Div. 794.)
    Jurisdiction—Trial of offender on Sunday*—Magistrate’s Court, city of New York,
    A magistrate of the city of New York has no power to try and sentence on Sunday a woman who has pleaded not guilty to a charge of soliciting for purposes of prostitution.
    The provisions of the city charter relating to the attendance of magistrates in court on Sunday do not authorize the trial on that day of an' offender who pleads not guilty, that being forbidden by section 5 of the Judiciary Law.
    Reargument of an appeal by the relator, "Lillian Ryan, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of October, 1911, dismissing a writ of habeas corpus.
    A reargument was ordered “ on the validity of the proceedings held on Sunday.” (148 App. Div. 928.)
    
      W. A. Fischer, for the appellant.
    
      Robert 0. Taylor, Assistant District Attorney (Charles 8. Whitman, District Attorney, with him on the brief), for the respondent.
    * See Note, Crim. Proceeding on Sunday, 27-310.
   Thomas, J.:

The relator was tried on Sunday for soliciting in a public place for the purpose of prostitution, and was sentenced to the ¡New York State ¡Reformatory for Women at Bedford. Upon a plea of guilty taken on Sunday a woman was forthwith sentenced and committed to such reformatory, and the same was upheld in People ex rel. Price v. Warden, etc. (73 App. Div. 174). But in that case there was judgment upon plea on arraignment^ while in the present instance a trial of an issue raised by a plea of not guilty was had. It is the general policy of the State that . courts shall be closed on Sunday, while power to act on that day for certain purposes is continued. Such policy is declared in section 5 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), which re-enacted section 6 of the Code of Civil Procedure: “ A court shall not be opened, or transact any business on Sunday, except to receive a verdict or discharge a jury. * * * But this section does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offense.”

Chapter 601 of the Laws of 1895, whereby was created Magistrates’ Courts and the Court of Special Sessions, by section 5 authorized the board of 'city magistrates to adopt rules as to the hours at which said courts shall be opened on each day, including Sundays and legal holidays, and what officers shall be in attendance,” and this power was continued by the charter of the city of New York (Laws of 1897, chap. 378, § 1392), and by section 1398 thereof it was provided: “ A city magistrate shall be in constant attendance in each of the city magistrate’s courts between the hours of nine o’clock-in the- morning and four o’clock in the afternoon on every day except Sundays and legal holidays, but including election day,” etc.

In 1901 such charter was amended (Laws of 1901, chap. 466, § 1397) so as to direct in terms that the board of city magistrates should adopt, and from time to time amend or. add to, rules as to the hours at which said courts shall be opened on ■each day, including Sundays and legal holidays, and what officers shall be in attendance,” and it was further provided (§ 1398): “the several city magistrates’ courts shall be opened every day at nine o’clock in the morning,” and in certain districts named “ shall not .be closed before four o’clock in the afternoon, except on Saturdays, Sundays and holidays, when morning sessions only shall be necessary.” (See, also, Laws of 1903, chap. 410, amdg. § 1398).

In 1910 in the Inferior Criminal Court Act (Laws of 1910, chap. 659, § 71) it was provided: “ There shall be a city magistrate’s court held daily in every court district, * * * each court shall be open every day at nine o’clock in the morning and shall not be closed before four o’clock in the afternoon, and the city magistrate assigned thereto shall be in attendance thereat except during a reasonable recess and except that the afternoon session may be dispensed with upon Saturdays, Sundays and holidays, other than days upon which general elections are held, when each court shall be open until the polls close.”

The respondent’s contention, in view of such statutes, is that the law contemplates that the court shall, be opened for the exercise of its full jurisdiction. It is considered rather that these statutes were to provide for or to insure the opening and holding of the courts and the attendance of the magistrate for the purposes for which its jurisdiction is exercisable in conformity to the general law. If section 6 of the Code of Civil Procedure broadly forbids the exercise of jurisdiction on Sunday, save for the purposes mentioned, and the exceptions do not include the trial of offenders, then the provisions for the opening and holding of magistrates’ courts on Sunday intend that they shall be opened for the purposes authorized by law. If a statute provide, as the Code (§ 6) in effect does, that a magistrate’s court shall not try a prisoner for a criminal offense on Sunday, but may do other acts, later provisions in statutes that magistrates’ courts shall be opened and held on Sunday means that they shall be open to do the exceptional acts allowed, and not those forbidden. In other words, the provisions in the charter command the attendance of magistrates to hold court on Sunday and a corresponding opportunity for those concerned, but do not enlarge what may be done. The peace must be preserved on Sunday, and so the magistrate should be on duty. Arrests may be necessary, and those arrested should be forthwith taken before the magistrate, who may commit for trial or, in proper cases, discharge. But that a person, as in the case at bar, may he summarily tried for an offense involving long imprisonment or detention is neither within the words or spirit of the law, and is contrary to policy of the State and the uses to which Sunday is appropriated. The prisoner is entitled to counsel, hut lawyers are resting from professional duty; witnesses are entitled to the quiet of the day, and are enjoying immunity from ordinary obligations; opportunities for the preparation of the case and the conduct of it are wanting or impaired. Above all, it is a day of rest so far as the safety and necessities of the people permit. When the State intends that prisoners shall be tried on Sunday, it will state its policy in language other than that of ordering the attendance of magistrates for the exceptional purposes specifically allowed or commanded and the holding of courts therefor.

The relator should be discharged.

Jenks, P. J., Bukr, Carr and Woodward, JJ., concurred.

Order reversed on reargument, with ten dollars costs and disbursements, and relator discharged.  