The statute under which the defendant was convicted provides as follows: “ All labor on Sunday is prohibited, excepting the works of necessity and charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community.”
The particular work upon which the defendant was engaged was repaving a street in a populous quarter of the city of Hew York. He was doing the work under a contract with the city, but his contract did not require him to prosecute the work on Sunday, nor had he been directed so to do by any city official. There are doubtless many cases in which the prosecution of public works on Sunday is.needful for the .good order, health or comfort of the community, and, therefore, permissible under the statute, but this is not, in our opinion, such a case. .
*602If it had appeared that any city official, charged with the conservation of the good order, health or comfort of the community, had directed- the defendant to proceed with the work on Sunday, we are disposed to think that he would have been absolved from the imputation of a criminal intent if he had complied with the direction.
No such justification appears in the present case, and the defendant in pursuing the work acted upon his own responsibility at the. peril of being able to show to the satisfaction of the court that the work was in fact, one of necessity. In this, he has failed.
The judgment of conviction is affirmed.
• McLaughlin,' Laughlin and Clarke, JJ., concurred; Ingraham, P. J., dissented,