By the Court.
Weight, J.[After stating the facts.]— There is clearly no substance in the demurrer. The complaint shows a good cause of action against both defendants. ' This is so, even if there be any point (which there is not) in the position assumed at special term, that under the statute the manager of a theater, and the owner of the building in which theatrical representations are had, are guilty of different *532offenses and liable to separate penalties. The allegations that the defendant Bechtel was owner, and the defendant Kolb lessee, and that they assented to the giving of theatrical performances in the building; that Bechtel owned the building, and that Kolb was manager of the performances, and that they both assented and consented to the performances, are sufficient to make out one cause of action against both defendants. If it even conceded that the additional averments in the complaint that Kolb was lessee, or that Bechtel let to Kolb for the purpose of giving theatrical representations, tend to show that the defendants are liable to separate penalties, these averments are not to be regarded on this demurrer. It is enough that without them a cause of action is shown against both defendants, and the prayer for judgment determines the character of the action.
But it is unnecessary to reject any allegations of the complaint; as a whole, it shows a good cause of action against both defendants. It is not true that by a proper construction of the act upon which the action is founded, that the manager of the enumerated exhibitions, and the owner of the place of exhibition, are liable to separate penalties. The act contemplates only one offense, — the opening of a theater, circus, &c., for theatrical or equestrian exhibitions, without a license therefor being first obtained; but two classes of offenders, viz., managers and owners, uniting to commit it. In such case it is well settled that the offense, being in its nature óne and entire, the penalty is one, and several penalties cannot be imposed on the several offenders.
In any view that may be taken of the case the demurrer was properly overruled.
The judgment should be affirmed.
All the judges concurred.
Judgment affirmed, with costs and ten per cent, damages.