Judgment of conviction of the Court of Special Sessions affirmed. No opinion. Jenks, P.J., Carr, Rich and Putnam, JJ., concurred; Burr, J. read for reversal.
BURR, J. (dissenting):
I am constrained to dissent in this case. The ordinance in question is a health regulation. In People v. New York Edison Co. ( 159 App. Div. 786), defendant demurred to the information upon the ground that the ordinance was unconstitutional, and the court below sustained the demurrer, "holding, in effect, that it forbids the discharge of smoke which would not injure property or affect the public health or comfort" (p. 787). The Appellate Division in the First Department held this to be too narrow a construction, and said the "provisions should not be construed literally, especially since that might render them, void" (p. 795). "It is evident that the object of this enactment was the prevention of the discharge of smoke of such a character and in such quantities that it might injuriously affect the public health or comfort, or injure property, and the court would not be warranted in convicting for a violation of this section, excepting on evidence from which an inference to that effect might be drawn" (p. 795). Such evidence is wholly wanting in this case. (See, also, People v. N.Y.C. H.R.R.R. Co., 159 App. Div. 329. )