Misc.] Court of Gen. Sessions, N. Y. County, November, 1921.

PEOPLE OF THE STATE OF NEW YORK v. KATHRYN JOHNSON et al., Appellants.

(Court of General Sessions of the Peace in and for the County of New York, November, 1921.)

Constitutional law — city ordinances when distribution of handbills not illegal — Constitution of State, art. I, § 8-Code of Ordinances of the city of New York, § 15, art. 2, chap. 22.

While a city ordinance, within reasonable limits, is proper and should be sustained, no such ordinance, no matter how worthy its intendment, should be permitted in any way to curtail any of the fundamental rights of the citizen.

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Where the only evidence to sustain a conviction for a violation of section 15, art. 2, chap. 22 of the Code of Ordinances of the city of New York declaring that "No person shall throw, cast or distribute any handbill, circular or other advertising matter whatsoever," etc., was the testimony of the police officers making the arrest, to the effect that defendants were handing out in front of a theatre circulars entitled Stop the Ku Klux Propaganda in New York" which were an appeal to the public not to encourage what it was claimed was an effort to glorify through the medium of a moving picture the activities of an organization having for its primary purpose the stirring up of prejudices and animosities against certain races and religions, the conviction will be reversed and the complaint dismissed upon the ground that the defendants in making such public protest were acting within their constitutional rights. (Const. of State, art. I, § 8.)

APPEAL from judgment of the City Magistrate's Court, borough of Manhattan, city of New York, convicting defendants of violation of city ordinance.

Edward Swann, district attorney (Felix C. Ben. venga, of counsel), for People.

Aiken A. Pope, for defendants.

Court of Gen. Sessions, N. Y. County, November, 1921. [Vol. 117.

TALLEY, J. This is an appeal by the defendants from a judgment of the City Magistrate's Court, borough of Manhattan, convicting them of a violation of section 15, article 2, chapter 22, of the Code of Ordinances of the City of New York, which reads as follows: "No person shall throw, cast or distribute, or cause to be thrown, cast or distributed, any handbill, circular, card or other advertising matter whatsoever, in or upon any street or public place, or in a front yard or court yard, or on any stoop, or in the vestibule or any hall of any building, or in a letterbox therein; provided that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the postal service."'.

The defendants were placed under arrest in front of a theatre, and the evidence was that police officers had observed the defendants handing out circulars.

It was not charged that there was any disorder, and there is no other question presented in this case except this: Did the defendants violate the ordinance in question by peaceably distributing circulars upon the night in question?

At the time of the arrest of the defendants a moving picture was being exhibited in the theatre in question, which it is claimed exalted the activities of an organization known as the Ku Klux Klan. At the time of the arrest of the defendants in question, the daily press of this city was devoting considerable space to the announcements made by an organization bearing the same name of its revival and reorganization throughout the country. The circular which the defendants were distributing bore the announcement that it was published by the "National Association for the Advancement of Colored People," and the defendants were acting as agents of that association.

Misc.] Court of Gen. Sessions, N. Y. County, November, 1921.

The paper which they distributed was entitled, "Stop the Ku Klux Propaganda in New York," and was an appeal to the public not to encourage what, it was claimed, was an effort to glorify through the medium of a moving picture the activities of an organization which, it was asserted, had for its primary purpose the stirring up of prejudices and animosities against certain races and religions in this country.

In the opinion of this court, the defendants were well within their rights in distributing the circulars in question, and the complaint against them should have been dismissed. I hold that the ordinance in question was never intended to prevent the lawful distribution of anything other than commercial and business advertising matter, and the circular in question does not come within that category. It would be a dangerous and un-American thing to sustain an interpretation of a city ordinance which would prohibit the free distribution by a body of citizens of a pamphlet setting forth their views against what they believed to be a movement subversive of their rights as citizens. The Constitution of the State of New York, article I, section 8, provides that "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press."

The primary purpose of the ordinance which it is claimed was violated by these defendants, was to prevent the littering of streets with commercial advertising, such as a merchant or shopkeeper might send forth for the purpose of aiding the sale of purchasable commodities. The ordinance within reasonable limits is a proper one, and should be sustained, but no city ordinance, no matter how worthy its intend

Municipal Court of New York, November, 1921. [Vol. 117.

ment, should be permitted in any way to curtail any of the fundamental rights of the citizen.

The circular in question was a protest against what was believed to be a movement which encouraged discrimination against certain classes of citizens because of race, color or religious beliefs, and whether or not there was a sound basis for that belief, they were within their rights in making public their protest against such a movement, and to make known their protest they used possibly the only means available by the distribution of circulars and pamphlets to the public.

The judgment of the magistrate herein is reversed, and the complaint against the defendants dismissed. Judgment reversed.

ABRAHAM L. ROSENZWEIG, Plaintiff, v. GUSSIE PORTNOY, Defendant.

(Municipal Court of the City of New York, Borough of The Bronx, Second District, November, 1921.)

Landlord and tenant- summary proceedings ejectment — juris diction — when summary proceedings cannot be maintained Code Civ. Pro. § 2232 - Civil Practice Act, § 1411(4).

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It is essential to the maintenance of summary proceedings instituted under section 2232 of the Code of Civil Procedure, now section 1411 (4) of the Civil Practice Act, that the one sought to be removed has "intruded into " or " squatted upon the premises, and has continued to occupy the same without permission which if ever granted has been revoked upon notice to the intruder or squatter.

Defendant was given permission to occupy plaintiff's residence and use the furniture as a guest during plaintiff's ahsence upon condition that he would vacate the premises at any time upon the request of plaintiff. Defendant occupied the premises for several months, and notwithstanding the fact that plaintiff thereafter revoked the permission given, continues in

Misc.] Municipal Court of New York, November, 1921.

occupancy of the premises though ten days prior to the institution of the proceedings, notice to quit had been served upon him. Held, that a motion to dismiss the proceeding instituted under section 1411 (4) of the Civil Practice Act, on the ground that the petition was jurisdictionally defective, will be granted and plaintiff remitted to an action of ejectment.

MOTION to dismiss summary proceedings.

Vincent Lippe, for plaintiff.

Samuel M. Newman, for defendant.

ROBITZEK, J. The plaintiff alleges that he is the lessee of an apartment in premises 1804 Washington avenue, Bronx, and that the premises were the home and residence of the plaintiff and on March 5, 1921, he permitted the defendant to use his furniture and to occupy the said premises as his guest during his absence, upon condition that said defendant would vacate said premises at any time upon the request of the plaintiff. That defendant entered into occupancy of the same and that on September 5, 1921, the plaintiff revoked the permission given but that the defendant continues in occupancy and that defendant is now an intruder and a squatter of this apartment and that plaintiff is being forcibly kept out of the possession of his home and residence. That ten days prior to the commencement of these proceedings a notice to quit and vacate the premises was served upon this defendant.

The defendant moves to dismiss the proceedings on the ground that the petition is jurisdictionally defective.

The Civil Practice Act has furnished a simple and inexpensive mode of ridding property of squatters by removal under summary remedy previously