#### The People of the State of New York, Respondent *v.*Federal Builders and Home Modernization Corp., Appellant.

Supreme Court, Appellate Term, Second Department,

January 15,1971.

*408*J ay Frankston*for appellant. *William Gahn, District Attorney (Joseph A. De Maro*of counsel), for respondent.

*Per Curiam.*

In our opinion, defendant’s operation of its showroom on Sunday comes within the condemnation of section 5 of the General Business Law. This statute prohibits all labor on Sunday, excepting the works of necessity and charity, whether or not such labor may “ disturb Sunday’s rest or repose or religious liberty ” *(People*v. *Kupprat,*6 N Y 2d 88, 90, citing, e. g., *People*v. *East Coast Attic & Basement Co.,*4 N Y 2d 954, affg. 10 Misc 2d 378, and other authorities).

The defense of collateral estoppel appears to be without merit. Significantly, defendant’s counsel conceded at the trial that its employee had performed acts constituting labor on the Sundays when the claimed violations occurred. Dismissal of the complaints was sought below upon the ground that there was no serious interruption of the repose and religious liberty of the community and by reason of prior adjudications of acquittal on July 5, 1966, July 20, 1968 and December 10, 1969, allegedly on the same facts and concerning the same parties and premises.

The first case, which is reported in *People*v. *Kahl*(46 Misc 2d 1088) was a prosecution against the sales employee of another corporation engaged in an entirely different business from that of the defendant herein. The only element in common is that the same physical premises and showroom are involved, albeit for different businesses. In view of the dissimilarities noted, we fail to see any basis for invoking collateral estoppel.

As to the second acquittal, it appears that the present corporate defendant went into possession of the premises in 1967 and was prosecuted the following year for a violation of section 8 of the General Business Law, which prohibits ‘ *‘*all trades ’ ’ on Sunday, as distinguished from the proscription against ‘ ‘ all labor ’ ’ under section 5 of the same statute. It also appears that the 1968 case was tried on stipulated facts and resulted in a specific finding by the trial court (per Samehga, J.) that the activities of the defendant did not constitute a ‘1 trade ’ ’ and ‘ *‘*do not interfere with the repose and religious liberty of the community.”

The 1969 prosecution was for violations of section 5 (prohibiting labor) and section 9 (prohibiting selling or offering for sale on Sunday) of the General Business Law. The record indi*409cates that on December 10, 1969, the court (per Samenga, J.) granted an unopposed motion to dismiss upon the ground of *res judicata.*

It seems clear from the foregoing that the sole predicate for the second acquittal was an erroneous legal conclusion that the statutory prohibition against “ all trades ” on Sunday was not violated absent a factual showing of *“*serious interruption of the repose and religious liberty of the community.” The third disposition, as noted, was on the law. Apart from the obvious inapplicability of section 8 to the third case or to the situation at bar, the rule of collateral estoppel does not apply to pure questions of law *(Yates*v. *United States,*354 U. S. 298, 336; *United States*v. *Moser,*266 U. S. 236, 242; *People*v. *De Sisto,*27 Misc 2d 217, 243). Both for reasons of public policy and as a matter of law, we conclude that the defense of collateral estoppel is not available in this case.

Although the Sabbath laws, which now permit various activities on Sunday, may well merit a reappraisal in light of present day realities, we are nevertheless constrained to affirm, since this is a matter for the Legislature and not for the courts *(People*v. *Friedman,*302 N. Y. 75, app. dsmd. 341 U. S. 907).

The judgment of conviction should he affirmed.

G-liokman, J.

(dissenting). I would vote with the majority for affirmance were it not for the two prior acquittals for similar violations mentioned in the majority opinion. In my view, these two prior acquittals operate as a complete bar to the prosecution in this case under the doctrine of collateral estoppel. The record indicates that on two previous occasions this defendant was charged with violations of the same statute on apparently identical facts, and in each instance was acquitted. Under the doctrine of collateral estoppel, the instant complaint, bottomed on the same statute and like facts, should have been dismissed. To subject defendant to continued prosecutions for what amounts to an identical issue runs counter to the concept that no person shall he twice tried for the same offense or, as here, thrice tried. The fact that the date of the offense in each instance differed is of no material consequence since the offense was the same each time. The important factor is the ‘1 identity of issues ” involved in all three cases (cf. *Israel*v. *Wood Dolson Co.,*1 N Y 2d 116,120).

Even if there were erroneous applications of the law in the prior cases, collateral estoppel still would serve to prevent relitigation. In *United States*v. *Moser*(266 U. S. 236, 242) the Supreme Court said: ‘ ‘ But a *fact, question*or *right*distinctly adjudged in the original action cannot he disputed in a subse*410quent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.” So here, the *right*of the defendant to operate on a Sunday in the manner in which it did was adjudicated by two prior courts as not being in violation of the statute. Surely, the rule aforesaid expressed in *Moser {supra)*is squarely applicable.

The Court of Appeals of this State has pointed out that a prior adjudication of an issue of fact *or*of an issue of law *‘ ‘*necessarily determined by the earlier judgment ’ ’ may suffice to bar a second prosecution. Former Chief Judge Lehman, speaking for an unanimous court in *People*v. *Brooklyn & Queens Tr. Corp.*(283 N. Y. 484, 495-496) made the following interesting observation: *‘ ‘*Acquittal upon the charge of maintaining a nuisance prior to August 2, 1936, is, of course, not a bar to prosecution upon a charge of maintaining a nuisance thereafter, yet it may in proper case constitute an adjudication of an issue of fact or of law necessarily determined by the earlier judgment, and parlous indeed will be the state of a railroad company if a jury may convict the railroad company of maintaining a public nuisance because, on its own property, it performs without negligence an act incidental to the operation of its railroad but which, in the opinion of the jury, should be performed at some other point where it might cause less annoyance to others; and if, in addition, successive juries may pass upon the question until one jury finds that the railroad is acting unreasonably.”

The majority opinion states that1 ‘ the rule of collateral estoppel does not apply to pure questions of law” and in support thereof cites *Yates*v. *United States*(354 U. S. 298), *United States*v. *Moser*(266 U. S. 236, *supra),*and *People*v. *De Sisto*(27 Misc 2d 217). These cases appear to enunciate the principle that collateral estoppel is available only as to determinations of fact, or mixed fact and law. But here, the Trial Judge made findings of fact and then undertook to state its opinion of the law applicable thereto. The majority in effect concede that the facts thus found were similar to the facts established in the prior cases. In these circumstances, I am not persuaded that the cases cited prevent the application of the doctrine of collateral estoppel in the case at bar.

In my judgment, the defendant should not be compelled to “ run the gantlet ” more than once *(Green*v. *United*States, 355 U. S. 184, 190). The conviction should be reversed, the informations dismissed and the fines remitted.

Hogan, P. J., and Gulotta, J., concur in *Per Curiam*opinion; Glickman, J., dissents in memorandum.

Judgment of conviction affirmed.