Opinion
January 24, 1944.
Appeal from Court of Special Sessions of the City of New York.
The judgment is reversed on the law, the complaint dismissed and the fine remitted. It appears from the undisputed evidence in the case that the defendant was the custodian of certain rooms that were known as "Foresters Temple," which consisted of club rooms, barroom, bowling alleys, et cetera. It is conceded that there was a slot machine located in the barroom, which machine was known as "Galloping Dominoes" and which violated the statute. The duties of the defendant were that of custodian, caretaker of the building and bowling alleys, and to act as bartender. The machine was placed in the barroom by the board of directors of the club where he was employed. He exercised no control over it and removed no money from it. He had no interest in the operation of the club itself but was a salaried employee. We give the words "keep" and "possess" as used in the statute their ordinary meaning as exercising actual control, care and management. Tested by these definitions, the machine was neither kept by the defendant nor was it in his possession. Courts may not give to words of the statute a sense different from that in which they would be understood by the ordinary citizen. ( People v. Stoll, 242 N.Y. 453.) Where the Legislature has intended to make employees answerable for the violation of the statute, it has so stated in explicit language. (Penal Law, §§ 421, 936, 1292-a.) Close, P.J., Hagarty, Carswell, Johnston and Lewis, JJ., concur.