(concurring). Defendant is charged with a violation of section B36-90.0 of the Administrative Code of the City of New York in that he did on the 1st day of April, 1938, unlawfully offer for sale a quantity of books in a public place, namely, in front of 1535 Pitkin avenue, county of Kings.
From a judgment of conviction the defendant appeals. In my opinion, the section in question under which this prosecution is brought is not broad enough to include the defendant herein. The section provides for licensing any person hawking or selling merchandise in the streets. The court, in finding the defendant guilty, apparently construed the section under which this prosecution is brought as broad enough to include the sale of the pamphlet in question, and, therefore, holds that the defendant, in selling this pamphlet on the streets was peddling merchandise without a license in violation of the section in question. The defendant contends that the section is unconstitutional in that it is in contravention of his constitutional rights, namely, that of freedom of speech and liberty of press. In my opinion the section in question is constitutional because it only requires a license in the event that an individual vends or peddles merchandise in the streets of the city of New York. I do not believe that the pamphlet in question herein can be held to be merchandise. In my opinion the section contemplates only hawking, vending and peddling merchandise. I do not consider, as stated ■ above, that the pamphlet in question comes under the definition as contemplated by said section. I, therefore, vote that the judgment of conviction be reversed and complaint dismissed.