The plaintiff operates a theatre in New York city under a license from the commissioner of licenses for a period of one year commencing May 1, 1935, for a license fee of $500, issued in accordance with sections 1472 and 1473 of the Greater New York Charter and sections 1 and 2 of article 1 of chapter 3 of the Code of Ordinances of the City of New York. At the time the license was received the plaintiff executed a consent to the effect that it would conform to certain rules and regulations of the department of licenses concerning the character of exhibitions to be given in its theatre. That consent, however, expressly provided that the plaintiff did not waive its “ constitutional and/or legal rights.”
On September 13, 1935, the commissioner notified the plaintiff that its license to conduct a theatre was suspended as of September 14, 1935. The commissioner’s action followed hearings which had been held by him upon notice to the plaintiff in consequence of complaints received with respect to the character of performances at the plaintiff’s theatre. The evidence before the commissioner, if assumed to be true, would establish that those performances were indecent to a degree fully justifying the revocation of the plaintiff’s license, provided the commissioner is vested with such power by law. We are of the opinion, however, that he has no such jurisdiction or authority.
The power of the commissioner of licenses to revoke the license for a theatre on account of a production therein which in his opinion is obscene, came before this court in 1922 in Woods Theatre Co., Inc., v. Gilchrist (200 App. Div. 128). There, after full consideration of the pertinent statutory provisions and ordinances, it was held that no such right of censorship was conferred upon the commissioner. The decision of this court was affirmed by the Court of Appeals (233 N. Y. 616), though by a divided court. Since then the Legisla*59ture has not only refrained from extending the power of the commissioner in this respect, but by implication has recognized the limitation, for, by chapter 690 of the Laws of 1927, it amended section 1140-a of the Penal Law to provide that where there has been a conviction for the production of an obscene exhibition upon premises licensed as a theatre “ the licensing authority shall have power to revoke such license upon proof of such conviction.” If the Legislature had intended the commissioner to have general power to revoke such licenses, it is hardly possible that it would expressly have conferred that power in these special circumstances, thus in effect prescribing a conviction under section 1140-a of the Penal Law as a condition precedent to its exercise.
The Special Term expressed the opinion that the commissioner had power to revoke the license for a theatre by virtue of the amendment (effective June 16, 1931) of section 1 of article 1 of chapter 14 of the Code of Ordinances, which provides: “ No place of public amusement or sport, outdoor or indoor, not heretofore specified, shall be operated without a license issued by the commissioner of licenses upon payment of such fees as may be prescribed by him, and upon such terms and conditions as the said commissioner of licenses deems necessary for proper regulation and good order.” This amendment constitutes the closing paragraph of section 1 of article 1 of chapter 14, which contains no express reference to the licensing of theatres. On the contrary, it provides for the licensing of a considerable number of other trades and occupations “ in addition to the businesses, places, trades, occupations and things required to be licensed by statute or by other chapters of this code.” Section 5 of article 1 of chapter 14 likewise provides for the suspension and revocation by the commissioner of any license or permit “ issued by him, under any provision of this ordinance.” The respondent now contends, and the court below has held, that the concluding paragraph of section 1, referring to places of amusement “ not heretofore specified,” includes theatres because they are not specified in section 1, and that accordingly such licenses may be suspended or revoked by the commissioner under section 5.
We are of opinion that these provisions are not susceptible of that interpretation. We think that the reference to places of public amusement “ not heretofore specified ” is to places of amusement for the licensing of which no provision had theretofore been made by law. In the case of theatres, licenses had theretofore expressly been provided for in great detail both by sections 1472 and 1473 etseq. of the Greater New York Charter and by article 1 of chapter 3 of the Code of Ordinances. The manifest purpose of the amendment of 1931 was to empower the commissioner of licenses to *60require a license in respect to forms of entertainment for which no license had been “ heretofore specified ” for such fees and upon such other conditions as the commissioner might prescribe. The word “ heretofore ” does not relate merely to the occupations enumerated in section 1, but to forms of entertainment for the licensing of which no provision had previously been made. (See General Construction Law, § 23; People v. B. & O. R. R. Co., 117 N. Y. 150; People ex rel. Huntington v. Crennan, 141 id. 239.) Any other construction would reduce the ordinance to contradiction and absurdity. It would, for instance, authorize the commissioner to refuse to issue such licenses except “ upon payment of such fees as may be prescribed by him.” Since section 1473 of the Greater New York Charter and section 2 of article 1 of chapter 3 of the Code of Ordinances expressly prescribe that the license fee for a theatre shall be $500, the interpretation contended for by the respondent would create inconsistencies impossible to reconcile. No such inconsistencies exist if we limit the application of the amendment to forms of entertainment for which special provision had not theretofore been made and for which consequently no license fee or “ terms and conditions ” had been specified.
The history of the amendment of 1931, to which we must give consideration in determining its effect (McLean v. United States, 226 U. S. 374; Lapina v. Williams, 232 id. 78; Blake v. National Banks, 23 Wall. 307; People ex rel. Fleming v. Dalton, 158 N. Y. 175 and cases cited at pp. 184, 185), strongly confirms this view. It is a matter of record that while that amendment was under consideration the committee on general welfare of the board of aldermen reported to the board (Proceedings of the Board of Aldermen and Municipal Assembly, Aldermanic Branch, vol. I, p. 1179, dated June 2, 1931), as follows: “ The purpose of the proposed ordinance is to require a license from the commissioner of licenses for any place of public amusement or sport not specifically mentioned in the Code of Ordinances. It can readily be understood that different amusements and sports will be introduced to the public and pending the amendment to the Code of Ordinances there would be no effective regulation. Your Committee therefore deems it advisable to prescribe that places of public amusement and sport should not be operated without a license and that the commissioner of licenses should have power to prescribe the terms and conditions upon which such license should be issued, pending the adoption of the ordinance covering the subject by the Board of Aldermen.”
Following this report of the committee on general welfare, the amendment was enacted, effective June 16, 1931. In the light of the history of that amendment, combined with the terms in which *61it is expressed and its inconsistency with other licensing provisions if construed differently, we think it can have no application to theatres and that the commissioner of licenses is accordingly without jurisdiction to suspend or revoke such a license. Nor is there force in the suggestion that if the commissioner has power to refuse the renewal of the license for a theatre (Matter of Rudhlan Amusement Corp. v. Geraghty, 146 Misc. 308) he must also have the power to suspend or revoke. The case cited fully recognized that these powers differ both in nature and effect. That they are different is very evident from the fact alone that where the commissioner refuses to renew a license, the licensee does not lose the amount paid as a license fee, while if the license is revoked or suspended the licensee may lose the greater part of the amount so paid.
If the commissioner has no such jurisdiction, then, of course, he cannot exercise the power of revocation, even after a hearing and for reasonable cause. If there is no such jurisdiction, then also, the plaintiff’s consent to conform to the regulations of the department of licenses with respect to the nature of the exhibitions, given without waiver of any legal rights, is ineffectual to vest the commissioner with jurisdiction over subject-matter which is not conferred by law. (Compare Benson v. Eastern Bldg. & Loan Assn., 174 N. Y. 83; Meacham v. Jamestown, F. & C. R. R. Co., 211 id. 346; Dudley v. Mayhew, 3 id. 9; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id. 526, 530; Cooley Const. Lim. [5th ed.] p. 493.)
The order should be reversed, with twenty dollars costs and disbursements, and the motion for an injunction pendente lite granted.
McAvoy and O’Malley, JJ., concur; Martin, P. J., and Merrell, J., dissent and vote for affirmance.