¶1(dissenting). Concededly, defendant publicly offered for sale and did sell lumber material on Sunday, as charged in the complaint. He conducted business in the name of a corporation of which he was the sole stockholder, and employed four persons who were not members of his immediate family. In my opinion this constitutes a violation of section 2147 of the Penal Law. The exception provided for in section E51-1.0 of the Administrative Code of the City of New York, which permits certain trade or business on Sunday by a “ proprietor and members of his immediate family ’ ’ who uniformly keep another day of the week as holy time, does not appear to be applicable to the facts of this case. Under the circumstances, I am constrained to vote for affirmance.
¶2Ritchie, J., concurs in opinion by Hart, J.; Schwartzwald, J., dissents in memorandum.
¶3Judgment reversed on the law and complaint dismissed.