FIRST DEPARTMENT, DECEMBER TERM, 1874. this objection. No injustice is done to the wife, and certainly no wrong to the defendant, who, knowing all the facts upon which he now bases his objections, voluntarily became a purchaser. If these views are sound, the fact that the wife was not a resident of this State when the action was commenced, does not affect the case. We are therefore of opinion that the order appealed from should be modified, so as to deny the appellant's motion, with costs; and, as modified, the order is affirmed, with costs and disbursements. DAVIS, P. J.: There are no merits in the appellant's case. He purchased the premises with full knowledge that his wife had not been personally served, but that service of the summons had been made on himself for her. He is an attorney, and appeared in the action for himself, and not for his wife; but it is admitted that Mrs. Church had no interest in the premises, except an inchoate right of dower. She was a necessary party to foreclose her contingent interest; but the former practice in such cases was to serve the husband for the wife, and it was his duty to protect her interest.† * An inchoate right of dower does not belong to the wife, as her separate estate. It is a mere incident to her husband's title, and therefore, service upon him for her, is probably good service under the present system of practice. However this may be, the defendant knew, when he made the purchase, that the service had been made in that manner only, and he must be deemed to have purchased with full knowledge of the defect of which he now complains. Besides, the only effect of the omission to make personal service would be, at most, that the inchoate right of dower of Mrs. Church would not be cut off by the sale; but as the purchase and taking of the title by defendant would ipso facto restore the same inchoate right in the wife, it is of no practical importance whether the foreclosure had or had not extinguished it. The objection to the title of the court was not of the slightest moment. The words, "of the city and county of New York," would * Mills v. Van Voorhies, 20 N. Y., 412. +Ferguson v. Smith, 2 John. Ch., 139; Leavitt v. Cruger, 1 Paige, 421; Eckerson v. Vollmer, 11 How. Pr., 42; Foote v. Lathrop, 53 Barb., 183. 11 How. Pr., 42; 53 Barb., 183, above cited. 3 84 | 58 457 FIRST DEPARTMENT, DECEMBER TERM, 1874. have been, at any stage, stricken out on suggestion of either party; besides, it appears that they had been stricken out, on stipulation of defendant. It is suggested that the order of the court below is too stringent in form, in directing an absolute completion of the purchase. The court below would have made the correction on application, and there was no occasion to appeal for that purpose. The modification may now be made to the order, simply denying the motion with ten dollars costs. The order, as so modified, should be affirmed, with ten dollars costs of this appeal, besides disbursements. DANIELS, J., concurred. Ordered accordingly. LESTER WALLACK, RESPONDENT, V. THE MAYOR, ETC., Theaters-power of legislature to require licenses to be taken out for— chapter 836, In order to enforce its prohibitory legislation, the State may authorize any person The powers of the society for the reformation of juvenile delinquents, its pur- The right of the legislature to direct the payment of the public moneys to an FIRST DEPARTMENT, DECEMBER TERM, 1874. institution, depends upon the uses of such institution, and not upon the character of the person or body who exercises them. The appropriation of the license fees, by the act of 1872, to the said society is not a gift to a private charity, but a provision for public use, lawfully administered through that corporation, and is clearly within the constitutional power of the legislature. In view of the objects of the said society, the legislature might appropriate the public moneys to it as a mere gift, and for its private use. Fire Department v. Noble (3 E. D. Smith, 440) and Fire Department v. Wright (id., 453) followed; People v. Batchellor (53 N. Y., 128) distinguished. APPEAL from an order of the Special Term, continuing an injunction. Edmund Randolph Robinson, for the appellant. A. Oakey Hall, for the respondent. DAVIS, P. J.: The appeal in this case is from an order of the Special Term, continuing, pendente lite, an injunction restraining "the defendants, and each of them, from beginning or prosecuting or instituting against the plaintiff in the above entitled action, any of the proceedings which are provided by any of the sections of chapter 836 of the Laws of 1872, of this State, referred to in the complaint in this action, and from enforcing or imposing, or attempting to enforce or impose, any penalty or penalties against the said plaintiff, under or by color of any of the provisions of said chapter, by suit or otherwise, and from applying for any injunction to restrain the said plaintiff from conducting or carrying on the business and place of amusement for the performances in the complaint mentioned." The act referred to is the act entitled, "An act to regulate places of amusement in the city of New York." The first section of the act declares that it shall not be lawful to exhibit to the public, in the city of New York, the various entertainments and performances therein mentioned, without first having obtained "a license for the place of such exhibition," as thereinafter provided. The second section empowers the mayor to grant such license on receiving for each license so granted, before the issuing thereof, the sum FIRST DEPARTMENT, DECEMBER TERM, 1874. of $500; and imposes a penalty of $100 for every exhibition or performance without such license, and authorizes the Society for the Reformation of Juvenile Delinquents to prosecute for such penalty, in the name of the people of the State of New York. The third section subjects the licenses granted by the mayor, to be revoked upon a hearing before a judge or justice of any court of record of the city, on summary proceedings. The fourth section provides that "upon granting every such license authorized by this act, the said mayor shall receive from the person to whom the same shall be granted, the amount payable for said license, as above provided, which amounts, as respectively received by him, shall be paid over to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of New York, for the use of said society." The sixth section declares the violation of any of the provisions of the act to be a misdemeanor, punishable on conviction by fine or imprisonment, or by both. The seventh section declares it to be the duty of the police and other officers to arrest and convey persons violating the provisions of the act, before any magistrate having jurisdiction of the offense, to be dealt with according to law. And the eighth section provides, that it shall be lawful for the Society for the Reformation of Juvenile Delinquents in said city, to apply to the Supreme Court for an injunction to restrain any person from opening any theater, circus, or building which he shall open or advertise to open, until he shall have complied with the requisitions of the acts, in obtaining such license; which injunction may be allowed upon a complaint to be made in the name of said society. The chief object of this act is to provide for the regulation of places of amusement in the city of New York, by placing them under the control of the public authorities, through a system of licenses to be granted by the mayor on the payment of a fixed fee, subject to revocation in summary proceedings before a judge or jus tice of a court of record, and sanctioned and enforced by pains and penalties, both civil and criminal, and by the restraints of an injunction to prevent the opening of such places without license. There is nothing new in the system of regulating such places by license. In all its essential features, it has been applied by special FIRST DEPARTMENT, DECEMBER TERM, 1874. statute to the city of New York for upwards of forty-five years; * and the same or similar powers have been conferred upon the municipal authorities of the incorporated cities and villages of the State by their respective charters, and upon the authorities of the several towns of the State by general laws reaching back to the earliest history of its legislation. Laws of this character are sustainable upon two grounds: first, as a legitimate exercise of the taxing power of the State; † second, as a part of the police regulations of the State. It will be difficult to find any authority in which the power of such regulation and restraint by license, has been denied to the state or federal legislature on constitutional grounds, when exercised within their appropriate jurisdiction. In our judgment, the constitutionality of the act of 1872 does not at all depend upon the validity of the disposition of the fees to be received by the mayor. That is a question which legitimately arises after the license fee shall have been paid to him by the person taking out the license, and in which such person has no greater interest than any other citizen who is a member of the municipal corporation. It is a question properly between the city and the Society for the Reformation of Juvenile Delinquents; and, if it be true that the legislature has not power to provide that the mayor shall pay over such fees to the treasurer of that society, pursuant to *Laws of 1829, chap. 302, §4; Laws of 1839, chap. 13; 5 R. S. (Edm. ed.), p. 212; Laws of 1862, chap. 281. + Providence Bank v. Billings, 4 Peters, 514; Nathan v. Louisiana, 8 How. (U. 8.) R., 73; License Tax Cases, 5 Wallace, 462, 475; Savings Bank Cases, 6 id., 611; Lunt's case, 6 Greenleaf, 412; Ingersoll v. Skinner, 1 Denio, 540; People v. Coleman, 4 Cal., 46; Raquet v. Wade, 4 Ham., 107; State v. Stevens, 4 Texas, 137; The Germania v. The State, 7 Maryland, 1; 9 Texas, 369; Boston v. Schaffer, 9 Pick., 415; City of New Orleans v. North, 12 La. An., 205; 5 Wallace, 474; Fire Department v. Noble, 3 E. D. Smith, 452; People v. Lawrence, 41 N. Y., 137. Fire Department v. Noble, 3 E. D. Smith, 452; Metro. Board of Excise v. Barrie, 34 N. Y., 657; License Cases, 5 How. (U. S.), 589; Cooley v. Board of Wardens, 12 id., 299; State v. Almond, 2 Hous., 612; Commonwealth v. Stodder, 2 Cush., 562; Nightingale's case, 11 Pick., 168; Village of Buffalo v. Webster, 10 Wend., 99; Bush v. Seabury, 8 John., 418; Slaughter-house Cases, 16 Wallace, 62; Commonwealth v. Colton, 8 Gray, 488; Tanner v. The Village of Albion, 5 Hill, 121. |