I dissent. I think that when a city street has to be repaved, depriving the public of the use of the street and exposing the city to the danger of liability because of the dangerous condition of the street while repaving is being conducted, that it is a work of necessity within the exception specified in section 2143 of the Penal Law. That section prohibits all labor on Sunday “ excepting the works of necessity and charity,” and “ in works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community. ” We all know the interference with travel and the discomfort and annoyance of the community which are involved in tearing up the pavement of a city street, and any work that will reduce that discomfort and annoyance to a minimum is distinctly in the public interest, and is, I, therefore, think, a work of necessity within the. meaning of this section of the Penal Law.
The prevailing opinion recognizes that “if 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, * * * that he would have been absolved from the imputation of a criminal intent if he had complied with the direction.” I do not understand that the question of the necessity of work of this kind is to be determined by “any city official.” The work of *603repaving a city street is either prohibited by the statute or it is not. If it is, no direction by “any city official ” would override the statute; if it is not, the defendant is not guilty of the offense charged.
I think, therefore, the judgment should be reversed and the defendant discharged.
.Judgment affirmed.