on this appeal, defines a public nuisance to be "A crime against the order and economy of the State, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission: 1. Annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons; or 2. Offends public decency." The facts set forth in the information and supported by the evidence show that the defendant advertised in the public newspapers of the city of New York to the effect that she cured "Irregularities, or no charge; longest cases; ladies boarded; 213 East 78th Street; " that she received into the house above indicated a large number of women who were with child, and that she used instruments in producing abortions. There is no attempt to dispute that the defendant made admissions of this character to the witnesses called by the People, but it is urged on the part of the defendant that as section 294 of the Penal Code makes abortion a crime of a high character there was no jurisdiction in the trial court of the offense charged as a public nuisance. Great reliance is placed upon the fact in support of this contention, that no adjudicated case has been found in which it has been held that the maintaining of a house for the purpose of practicing the vocation of an abortionist constitutes a nuisance. It is true, as a general proposition, that if a house is so kept that no one outside of its inmates is disturbed, annoyed or corrupted in their morals, it is not in law a disorderly house. The annoyance or corrupting influence must reach beyond the inmates and affect the public peace or morals of the community (1 Bish. Crim. Law [3d ed.], § 1051), but the same author says that this doctrine should "not be so applied as to exempt any man from indictment whose home in practically set open to the public, alluring the young and unwary into it for the purpose of there indulging in anything corrupting to their virtue or sobriety or general good morals. If a man would shield himself from indictment when he allows wicked and corrupting

practices within his house he should keep his doors, while those practices are carried on, closed to the outer world." (§ 1053.) Again, this same learned author says: "If a house is of common resort for the commission of petty offenses against the laws, such as offenses punishable by fine, it is indictable on this ground, though not otherwise disorderly." (§ 1055.) In the following section he declares that this principle is as old as the law itself; that "A man who holds out inducements for people to congregate, and together commit violations of a statute, not only lends the concurrence of his will to their wrongful acts, but also does what most powerfully tends to disrobe the body politic of her virtue, and of the drapery of that order which the hand of government has thrown around her." In section 1057 he continues: "To bring a case within this principle the particular acts must be either indictable or in some sense unlawful. Therefore, the English court quashed an indictment which charged one with converting a house into a hospital for taking in and delivering lewd, idle and disorderly unmarried women, who, after their delivery, went away, and deserted their children, whereby the children became chargeable to the parish.' 'By what law,' asked LORD MANSFIELD, 'is it criminal to deliver a woman when she is with child?'" In this there is a clear intimation that the indictment would have been good had it charged that the house was used for the crime of abortion rather than the lawful delivery of children.

Construing the provisions of the Penal Code under which this charge is made in the light of the common law, it is only a just construction to hold that the broad language used embraces the offenses of the common-law rule. As before seen, the section defines a nuisance to consist in unlawfully doing an act which annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons, or offends public decency. This surely is as broad and inclusive in terms as the rule of the common law, which has been made the subject of

the Code provisions. At common law it would have been, and under the Code provisions it is, a nuisance for a person, by public advertisement, to invite and receive a class of the public to his premises for the purpose of violating the laws of the State, as was done in this case. This, in our opinion, constitutes "crime against the order and economy of the State" by offending “public decency." Is it the duty, therefore, of this court, in accord with law, to sustain this conviction. The offense of abortion is one thing; that of maintaining premises open to the public for the purpose of consummating that crime is another and separate offense against the peace and good order of the State. It is an inducement to moral laxity and to crime, and is within the letter and spirit of the sections of the Penal Code here under consideration.

No errors prejudicial to the defendant appearing in the record, the judgment of conviction is affirmed.

PATTERSON, P. J., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred.

Judgment affirmed.

SUPREME COURT-APP. DIVISION-SECOND DEP.,

April 26, 1907.

THE PEOPLE EX REL. PALMINTERI v. PALMIN

TERI.

(119 App. Div. 82.)

HUSBAND AND WIFE-DESERTION OF WIFE-CHARTER OF CITY OF NEW YORK § 685.

Although § 685 of the charter of the City of New York, authorizing an action against persons who desert wife or children as disorderly persons is designed to prevent the persons deserted from becoming a public charge, a conviction may be had although the deserted wife admits that she will not live with her husband by reason of his infecting her with a venereal disease.

APPEAL by the defendant, Antonino Palminteri, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 8th day of October, 1906, affirming an order of a city magistrate adjudging the defendant to be a disorderly person.

Gasper J. Liota, for the appellant.

James D. Bell [David Joyce and William B. Ellison with him on the brief], for the respondent.

RICH, J.:

The proceeding was instituted under section 685 of the charter of the city of New York. (Laws of 1901, chap. 466.) It appears from the evidence on the part of complainant, and the magistrate has resolved the questions of fact in her favor, that the parties were married in July, 1904, and lived and cohabited together as husband and wife for less than one year when she became ill with a loathsome venereal disease which necessitated her leaving her home August 26, 1905, for treatment in a hospi

tal where she was confined eight weeks. Defendant visited her frequently during the first few days of her illness and then ceased his visits, and complainant saw no more of him until his arraignment in court February 25, 1906. While complainant was confined in the hospital defendant removed his wife's clothing from her home to the residence of her parents, stored their household furniture, took possession of complainant's jewelry and wedding gifts, and since that time has neglected to communicate with her in any manner down to the time of his arrest. That defendant abandoned his wife is not open to question. That he was responsible for her condition was satisfactorily established. Upon the trial he sought to obtain his release by testifying that he was ready and willing to provide a house and support complainant, but that she declined to live with him. We must assume that the learned magistrate reached the conclusion that this offer was not made in good faith, and under such circumstances it was properly ignored. He was not required to acquiesce in the perpetration of a fraud on the court, and if he believed that the offer was not made in good faith it was his duty to disregard it.

The serious question in this case is found in the fact that, complainant stated on her cross-examination that she could not live with her husband now. The statute as stated by Mr. Justice JENKS in People ex rel. Feeney v. Dershem (78 App. Div. 626) is "designed to prevent her from becoming a charge upon the public purse." The learned counsel for defendant contends that where a wife refuses to live with her husband, who is willing to provide for her in her own home, for a cause entitling her to a divorce or separation, she must seek her support in a civil action for separation based upon his misconduct. But suppose she neglects to proceed in this way, is defendant to be permitted to allow his wife to become a public charge because she does not see fit to again endanger her health by living with him? She was not required to live with a man of so little re