Opinion
May 21, 1915.
Henry C. Neuwirth, for the appellant.
Robert S. Johnstone, for the respondent.
Defendant was charged, by an information, with unlawfully exposing the sign of "plumber" and "plumbing," and a sign containing words of similar import and meaning, and not having registered his name and address at the office of the bureau of buildings of the borough of Manhattan. There was a second count in the information, but no attempt was made to secure a conviction under it.
The prosecution was based on subdivisions a and b of section 416 of the Greater New York Charter (Laws of 1901, chap. 466), as added by chapter 754 of the Laws of 1913. These subdivisions read as follows:
"§ 416. (a) It shall not be lawful for any person or co-partnership to engage in, perform, or carry on the trade, business or calling of employing or master plumber in the city of New York unless such person or each member of such co-partnership shall have been registered as provided in the foregoing section.
"(b) It shall be unlawful for any person or co-partnership in the city of New York, unless said person or co-partnership shall have complied with the requirements of the preceding paragraph to hold him or themselves out to the public as a master or employing plumber by the use of the word `plumber' or `plumbing' or words of similar import or meaning on signs, cards, stationery or in any other manner whatsoever."
The only proof against the defendant was that he displayed on his place of business a sign reading as follows:
"M. ISER GENERAL CONTRACTOR TINSMITH ROOFER. PLUMBERS GAS FITTERS SUPPLIES"
The sole question in the case is whether by the exhibition of this sign defendant held himself out to the public as a master or employing plumber by the use of the words "plumbing" or "plumber" or words of similar import.
In our opinion he did not. The sign must of course be read as it is written, and not be given a forced or strained construction in order to convict a person of a criminal act. If there be two equally possible readings, one innocent and one criminal, the defendant is entitled to have the innocent one adopted.
Evidently defendant holds himself out as a general contractor, tinsmith and roofer. The question at issue turns upon the reading of the last three lines. Does the defendant proclaim by them that he deals in supplies for plumbers and gasfitters, which would be quite innocent, or does he proclaim that he (for the sign is that of an individual) is a plumber and gasfitter, which would be unlawful, and that he deals in supplies of an undesignated character?
It is much the more reasonable to read the sign in its innocent sense than in its criminal.
In the first place it would be strikingly ungrammatical to speak of an individual as plumbers and gasfitters, using the plural form, especially as the draftsman of the sign had been careful to describe him as contractor, tinsmith and roofer in the singular form. This reading also specifies the character of the supplies in which the defendant deals.
Finally, the sign, as it is printed in the case on appeal has a period after the word "roofer," but none after the word "gasfitters" on the following line.
As against this we have only the circumstance, which appears to have turned the scale against the defendant in the court below, that the sign painter omitted the apostrophe after the words "plumbers" and "gasfitters." This omission seems a slight peg upon which to hang a conviction for a misdemeanor. It is quite probable that the sign painter drew the sign phonetically, painting the words as he spoke them and heard them spoken, and never troubled himself with the nice use of the apostrophe, if indeed he had ever heard of such a thing.
The judgment appealed from must be reversed and the defendant discharged.
McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred; INGRAHAM, P.J., dissented.
I dissent. The question is, whether the evidence justified a finding that the defendant held himself out to the public as a "master or employing plumber by the use of the word `plumber' or `plumbing' or words of similar import or meaning on signs, cards, stationery or in any other manner whatsoever." The proof was that the defendant displayed on his place of business the sign quoted in the prevailing opinion. I think it clear that any one looking at that sign would understand that the defendant was engaged in the business of a plumber and gasfitter, and that the addition of the word "supplies" on a separate line at the end of the sign did not imply that the defendant confined himself to furnishing plumbers' and gasfitters' supplies. There was, therefore, a question of fact presented to the trial court whether such a sign was within the prohibition of the charter. The defendant by testimony could have overcome this presumption; but he rested upon the proof of the sign, and I think there was sufficient to justify the court in its judgment.
Judgment reversed and defendant discharged. Order to be settled on notice.