majority">Hockert, C. M.

The defendants are charged with violation of section 833 of the Penal Law (added by Laws of 1933, chap. 418), which prohibits “ Marathon dance contest or performance.” This section is headed as follows: “ Marathon dance contest and participation therein prohibited, ” and reads as follows in the section: “ participating in a Marathon dance contest or performance.” The clear intent, as strictly construed, prohibits Marathon dance contests only and no other long-distance events, such as six-day bicycle races, tree-sitters, etc. The question here is to determine from the evidence whether the “ Walkathon ” is a dance Marathon or merely a strolling party. The officers who attended sat through *294nine hours in one day and eight and one-quarter hours the following day — an endurance feat in itself. They testified that the contest was conducted in a large building which had seats for approximately 2,000 spectators and in the center was a raised wooden platform. Attached to i his platform was another raised platform on which an orchestra played music. There was a sign outside the building advertising the “ Walkathon ” and announcing a winning prize of $1,000; the thirty-two contestants were most of the time on the raised dance floor. Six or seven couples danced three to five minutes at a time and the rest of the contestants were either walking or running. Then the dancers would walk and others took (heir places; at all times there were couples walking and most of the time couples were dancing, with occasional specialty dances or songs for which the audience in appreciation would throw coins on the stage. During each hour some of the contestants would leave for periods of five to fifteen minutes but at all times there were contestants on the floor. No rules of the contest were presented. Clearly there was a contest of some kind and if named a “ Marathon Dance Contest,” it would be clearly prohibited. The spectators attending a Marathon dance contest would expect dancing and at a Walkathon the spectators might reasonably expect a walking contest. This contest was in the last analysis an endurance contest of motion, the officers having testified that at all times while on the dance floor the contestants kept moving — all these facts clearly indicating that it was no walking contest for that has always been over a measured course and could hardly be conducted on a small dance floor. Was the contest a Marathon dance contest or performance? According to the Standard Encyclopedia, dancing is “ a form of exercise or amusement in which one or more persons make a series of more or less graceful movements or steps in accord with music.” There have been dances from the earliest savages who worked themselves in their ferocious war dances into frantic mechanical intoxication, capable of carrying them irresistibly to victory; the “ rain doctors ” of Central Africa dance mystic dances to bring rain; the wives of Gold Coast negroes dance a “ battle dance ” to give their absent husband courage at the front. Many ancient religions had dancing as one of its principal forms of worship and in modern times the Shakers and some negro cults. Popular dances had their real start in the reign of Louis XIV in France. National dances are preserved in nearly all places in Europe and take on every form and description.

Not so many years ago the Virginia reel, the cotillion, the square dances, the lanciers, the graceful minuet and the cake walk were popular numbers interspersed between waltzes and one-steps. *295Vernon Castle, exponent of the one-step, invented the Castle walk. Every one of these dances, as well as many more, had walking continuities. Today there is a whole new variation of dances, such as the shag, truckin’, the Susy-Q, and the big apple. All rules of dancing are entirely disbanded. Couples walk around through the entire dance and suddenly gyrate into the most unsuspecting antics; the dancers go separately and in all directions. The big apple takes the “ cake;” anything goes, even to the Walkathon. The only difference is the time element. Ordinary folks keep it up for a few minutes; this contest goes on day after day and the same spectators come back to see if their favorites have been eliminated.

The name “ Walkathon ” is a misnomer and the barest kind of subterfuge. It is an attempt to come within the law by a mere title. It was Shakespeare who said, “ A rose by any other name would smell as sweet,” and a contest involving contestants on the dance floor dancing, walking, running, moving to music produced by radio or orchestra is still a Marathon dance performance. Truly a properly executed dance is a thing of joy and beauty but the endurance feature here produces results that indicate physical ruin. The girl contestants appeared in court worn and tired. They were pale, nervous, showed effects of eye strain and had circles under their eyes; they were continually rubbing their eyes and biting their finger nails, and at the conclusion, many broke down and sobbed. During the hearing one of the girls suddenly had a nose bleed and all appeared in a high state of nervous tension. The boys appeared normal and endured the hardships of this long-distance dance contest much better than the girls. There are many ways for girls to make a living, but this is apparently one of the most difficult, the performance taking the very life out of these misguided contestants. What a spectacle to watch! Day after day, seeing the same couples, with five to fifteen minutes per hour for rest, change and feed in this Marathon dance contest ■ — ■ it is difficult to understand how spectators could enjoy such a spectacle if they ever have seen the dancing on the screen of such artists as Fred Astaire and Ginger Rogers or had themselves enjoyed the sweet strains of the Blue Danube waltz.

A prima facie case has been established. All defendants are held for Court of Special Sessions.

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