
    David Weistblatt and Lena Lonstein, Plaintiffs, v. Theodore A. Bingham, Individually and as Police Commissioner, et al., Defendants.
    (Supreme Court, Kings Special Term for Motions,
    March, 1908.)
    Exhibitions — Exhibitions subject to license — Under Greater Tiev. York Charter — Moving pictures in ice cream saloon.
    An exhibition of moving pictures in an ice cream saloon for the purpose of attracting customers, to which no entrance fee is charged, is not within section 1472 of the Greater New York Charter which requires the payment of a license fee of $500 for the exhibitions specified therein.
    But such exhibition is a “ common show ” within the meaning of section 51 of said charter and .the ordinance adopted by the board of aldermen requiring common shows to be licensed.
    Application for an injunction.
    Sidney A. Clarkson, for plaintiffs.
    Francis K. Pendleton, corporation counsel (Edward Lazansky, of counsel), for defendants.
   Crane, J.

The plaintiffs have an ice cream saloon and candy store at Tompkins avenue and Floyd street, in this borough, the rear of which is fitted up with tables to accommodate a hundred or more people and with a screen upon which are thrown moving’ pictures. While no entrance fee is charged for this exhibition, it is evident that it is conducted for the purpose of drawing trade and of gathering people into the place to purchase soda or ice cream while viewing the pictures. A person who came in and occupied one of the chairs at a table, without ordering something, I imagine would not stay very long. In this indirect way a profit is made out of the moving picture show.

The police, although making no arrest, have stopped the giving of these pictures on the ground that the plaintiffs have no license therefor; and the latter have applied to this court to restrain this interference of the officers. Unless restrained by some provision of law, these plaintiffs have a perfect right to carry on their business in any way they please not amounting to a nuisance. The only question, therefore, is whether the charter or ordinance of the city requires a license for a moving picture show as given by the plaintiffs.

The corporation counsel insists that section 1472 of the charter applies, which reads:

“It shall not be lawful to exhibit to the public in any building, garden or grounds, concert room or other place or room within the city of ¡New York, any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts therein, or any equestrian, circus or dramatic performance, or any performance of jugglers, or rope dancing, or acrobats, until a license for the place of such exhibition for such purpose shall have been first had and obtained, as hereinafter provided.”

I do not consider, however, that a magic lantern or stereopticon show is included within the words “ any other entai'nment of the stage,” or within the meaning and purpose of this section, so as to require a license fee of $500.

Section 51 of the charter giVes to the board of aldermen power to provide for the licensing and otherwise regulating the business of “* * * menageries, circuses and common shows.”

Section 305 of the' ordinances adopted by the board of aldermen enacts that certain businesses must be duly licensed and names, among such, “ common shows.” Section 352 of the ordinances reads as follows: “A common show shall be deemed to include Ferris wheel, gravity steeplechase, chute, scenic cave, bicycle carousel, scenic railway, striking machines, switchback, merry-go-round, puppet show, ball game, and all other shows of like character, but not to include games of baseball, or to authorize gambling or any games of chance.”

Is a moving picture exhibition a common show within the meaning and purpose of section 51 of the charter and of these ordinances ? It is quite evident that the words other shows of like character ” in section 352 of the ordinances do not include moving picture shows; but .it is also evident that this section does not mean to define or limit the words “ common show,” but to state what they shall be deemed to include, leaving many other performances and shows than those specified to the provisions of the preceding section, 305, likewise requiring license.

It may be said with some reason that, by the rule of ejusdem generis, the words common show,” following in section 51 the words menageries and circuses ” and associated. in section 305 of the ordinances with various businesses like hawkers, peddlers, shooting galleries and the like, would not cover or include moving picture shows, in-door performances of a more delicate nature; but Mr. Justice O’Gorman’s application of this rule, as expressed in Matter of Hammerstein, 57 Misc Rep. 52, is a correct view to take, I think, of the ordinances adopted by the aldermen for the purpose of regulating shows. It is common knowledge that the moving picture shows' are run in the summer time in conjunction with summer gardens and saloons, are very common at popular seashore resorts for drawing and gathering a crowd into drinking places, and partake of the nature of the song and dance, acrobatic, minstrel performances and the like, formerly used for this purpose. The moving picture show, as conducted by the plaintiffs in connection with their ice cream saloon, is a public performance and given for the purpose of entertaining the patrons of the place, and is in the nature of the common or ordinary show as thus used. It might not be so if used for instruction. It is claimed that the case of People v. Royal, 23 App. Div. 258, is contrary to this view; but I find the facts to be, as expressed in the opinion, that the exhibition given by defendant in that case was to explain and call attention to the book he was selling. Ho license, I take it, would be required "under these ordinances I am construing, if the use made of the stereopticon was to explain or advertise the goods or wares the plaintiffs had for sale. Such use would not be a performance or a common show.

In applying section 265 of the Penal Code, it has been held by Mr. Justice Kelly, in this district, in Economopoules v. Bingham (October, 10, 1907), that the words “public shows,” prohibited on Sunday, included the moving picture exhibit. While this same application of the Penal Code has not been followed in Edén Musee American Co. v. Bingham and Keith & Proctor Musical Co. v. Bingham, N. Y., L. J., January 22, 1908, yet these latter cases do not intimate that a moving picture show should not be licensed under the charter and ordinances.

For the reasons thus expressed, I shall deny the plaintiffs’ application for injunction restraining the police, referring them to the bureau of licenses to obtain permission for their exhibition in accordance with the ordinances above referred to.

Ordered accordingly.  