Opinion
December 8, 1958
Appeal (1) from a judgment of a City Magistrate, sitting as a Court of Special Sessions of the City of New York, Borough of Queens, convicting appellant of a violation of section 2147 of the Penal Law and sentencing him to pay a fine of $5 or to serve one day, (2) from said sentence, and (3) from the decision. The fine was paid. Appellant was charged with selling monuments on a Sunday at his place of business near a cemetery, for future delivery and installation. Judgment reversed on the law and the facts, complaint dismissed, and fine remitted. In fact and by common understanding, custom and usage, appellant's sales of memorials for deceased persons were not serious interruptions of the repose and religious liberty of the community (Penal Law, § 2140; People v. Deen, 3 A.D.2d 836, affd. 4 N.Y.2d 708; McCormick v. Hazard, 77 Misc. 190, 192; People v. Law, 142 N.Y.S.2d 440). No separate appeal lies from the sentence which has been reviewed on the appeal from the judgment of conviction. Appeal from decision dismissed. No appeal lies from a decision. Beldock, Murphy, Ughetta and Hallinan, JJ., concur; Wenzel, Acting P.J., dissents and votes to affirm. [ 11 Misc.2d 731. ]