New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1916-11-23
Appellate Division Calls
Sabbath Shows in N. Y.
Violations of Law
COURT OF APPEALS
MAY DECIDE CASE
Decision Doesn't Apply in
This City, Insists Film
Mems Lawyer

Albany. Nov. ga sweeping deci-
sion, branding Sunday motion picture
exhibitions as violations Of the state
statute, was handed down to-day by the
Appellate Division of the Third De-
partment. Tho decision was in the
nature Of an Interpretation of the Sun
day Observance law and not an order
directed against any playhouse.
The case, which has attracted the at
tention Of cinema theatre proprietors
in all parts of the state, grew out Of
the arrest Of Leroy H. Bender, of this
city, moving picture theatre owner,
FOR violation of a local ordinance pro-
hibiting Sunday exhibitions.
Bender was discharged on a writ Of
hsbeas corpus when Justice Morschsu-
ser. Of tho Supreme Court, held that
the law had not been violated. Justice
Morschauser's decision was in accord
snce with a ruling of the Appellate Di-
vision for the Second Department in
1898 that the Sunday law did not apply
20 moving picture theatres.
Other Decisions Reversed
To-day's decision reverses those pre-
viously handed down, but in view Of
the fact that Associate Justice John
Woodward dissented from the opinion
Of his four colleagues. Presiding JUS
tice John VI. Kellogg and Associate
Justices George f. Lyon, Wesley How
ard and Aaron V. s. Cochrane, an ap-
peal can be taken 10 the Court of
appeals.
The majority opinion. written by As
sociate Justice Lyon, suggests that the
Legislature alone can decide how Sun
day shall be observed.
"If the existing law is in any way
unjust or unsatisfactory" the opinion
says, "the remedy is b. application TO
the Legislature to modify or annul II,
not by application 20 the court, whose
sole duty Is to construe 1t and say
what the Legislature meant by pass
ing it."
The opinion reviews the circums stan
ces of Bender's arrest and refers TO his
contention that he should be discharged
because the phrase in the statute, "or
other public sports, exercises or shows"
does not apply TO indoor performances.
Used in Familiar Sense
"The words 'or other public sports,
exercises or shows are presumed TO
have been used by the Legislature in
their ordinary and familiar sense" says
the opinion, "and are to be so under
stood and construed. Acts relating to
the Observance Of the Sabbath are re-
medal statutes and are 20 be con-
strued literally in respect to the mis-
chiefs sought to be remedied. .,
1.-THE vital question to be decided
upon this appeal is: What did the Leg
islature mean when 1t wrote into the
statute relating 20 the observance OF
Sunday, following the prohibition
against shooting, hunting, fishing, horse
racing, gaming, the words or other pub
lie sports. exercises or shows " Did u IN
tend to prohibit exhibitions in the nat
IRE of the ordinary moving picture
show? 1t would seem clear that the
answer TO that question must be IN the
affirmative"
The opinion also states that the trend
of recent legislation has been to pro-
tect so far as possible, the right OF
employees TO rest on Sunday, and that
no good reason is apparent for denying
that privilege to the thousands Of en-
ployes Of moving picture theatres in
the state.
While the court proceedings were In
stituted TO test the legality of an Al
bany City ordinance, to-day's decision
applies to all motion picture theatres
in the state. Sunday moving picture
exhibitions have been allowed in many
cities. but have been forbidden by local
ordinances in others, and in still Others
the matter has been left to the discre-
,ion If the notice.