New-York tribune., 1910-02-05
CITY WINS IT'S POINT
SUNDAY CONCERTS UP.
palidity of Ordinance Main-
tanned on 4pDedl.

The Appellate Division of the Supreme
Court unanimously upheld yesterday the
validity and constitutionaIity of the ordi-
nance of the Board of Aldermen regulating
theatrical performances on Sunday. the ef-
feet of the decision being that such per
formances must be confined to those of
a sacred or educa tionaI character.
The case came before the Appellate Di-
of Percy G. Williams Alhambra Theatre.
in Harlem The Corporation Counsel pro-
ceeded against the latter. specifying a per-
formance in December 1907, to collect a
fine of $500 because of an alleged violation
Of the ordinance Justice Greenbsum dis
missed the action on the ground that the
city ordinance was useless because its pur-
pose was already covered by a provision of
the Penal Code which also fixed penalty
of $500 The Appellate Division reversed
this decision and upheld the appeal of the
Corpora tion Counsel ordering new trial.
The court did not render judicial inter
probation of the proviso sacred or educa-
tionaI contained in the ordinance, and that
will continue to he left to the police. who
must Judge each Sabbath performance by
itself, subject to review by the proper
tribunals
Justice Mclaughlin says;
I am also Of The opinion that the ordi-
nance is valid Irrespective of prior legis-
lation on the subject The Board OF Alder
men undoubtedly by virtue of the provl-
sions of the charter had the power to regu-
late the granting and revocation Of the
nance is that for violation of its pro
visions regarding Sunday performances
the license Of the offender shall be revoked.
and in addison he shall pay a penalty or
$500 for the benefit of the city.
Simply because the forbidden acts are
also made misdemeanors and may be pun
ished and penalized under the Penal Code
is valid reason why the plaintiff here
should not have Judgment and the license
of the defendant thereby revoked Unless
the city can maintain the action then there
is no authorized form Of procedure which
i can take to revoke defendants license
for unlawful Sunday performances
Sunday concerts at the vaudeville houses
will take place tomorrow, as usual The
only question involved in the decision, ac-
cording to the theatrical managers and
their lawyers. is whether he city has the
right to collect a fine of $500 in case of
wiful violation of the law.
William Hammerstein. manager of Ham
nersteins Victoria Theatre, against whom
the city brought suit in 1907 for revocation
Of the Nictoria's license and to recover $500
for violation of the law, said
L don't see why there is all this talk
about Sunday opening Under the Law the
city has never been able to recover a fine
for the violation of a law-that remained
for the Society for the Reforma ton of
Juvenile Delinquents Now the Appellate
Division says that the city can bring such
suit. That is all there is TO the ques-
ton We shall continue giving our Sunday
performance as before. being careful TO
eliminate all acts which are not educa-
tionaI in their nature
Mr. Hammerstein is wrong as 10 the
Society for the Reforma ton of Juvenile
Deinquents, however, for as Justice Nc
Laughlin pointed out in his opinion, fines
now go to the city under the amended
ordinance
Percy Williams. whose Alhambra Theatre
was involved in the suit. said: This de-
Csion has nothing 70 do with Sunday clos
ing We shall open as usual. Two courts
have disagreed in their Interpretation OF
the law, perhaps we can get third TO
express a different opinion We shall prob
ably appeal.
William Morris. proprietor OF the Ameri-
can Music Hall, said tnat he had not been
mixed up in the suit. Il am giving clean.
educa tionaI performances. and snail con-
tinue to do so, he said
William CTToSSrnan, OF House, IIooSliLoii u
Vorhaus, who defended the action made
! this statement:
The city began its action against the the
| theatres under the Doull ordinance. WhlCn
We claimed was irregular, because II
| amounted 70 nothing more than an aIhenu- e-
nent TO the state law We clalnltd tiide i
the Ciry should bring criminal actloh @uIiuer @
+he Penal Code, charging mlsdeIneduWof W
for violation. The Appellate LlvIsI9Il "a
saws that the city may seek itnIeuS
either under the state law or the ordlhdhCe-
! The decision does not effect the cIIai dC'ef
! of Sunday performances
charles Rurnham president Of the Theat-
ricaI Managers Association, said Inc
ei+uation is back where ic was before II
all comes dt,an TO the question Whether
performance is educational or not Iha'
will remain for a jury to determine
II was said last night AT both the metro
noIitan and the Manhattan opera houses
that the decision of the Appellate DIVISION
uyoIId in no way affect the Sunday nlsh'
concerts at these houses. these concerts
being education in character. and none
Of the singers being in costume
| Navor Gavnor said the law would be
| observed but he could not predict what
! course would be taken by himself and P9-
! lice Commissioner Baker in enforcing II
r was a matter he declared. which he had
| not had time to consider. but which would
( be taken up in due course