McLennan, P. J.:
The defendant was convicted by a Court of Special Sessions held by one of the justices of the peace of the city of Buffalo of the crime of disorderly conduct, as defined by sections 5 and 8 of chapter 9 of the ordinances of said city, viz., for having made “ a noise and disturbance at the house Number 1 Letch worth Street ” in said city, and-for having used “profane and obscene language in No. 1 Letch-worth Street in violation of section 8 of Chapter IX of the ordinances of said city.” Upon such conviction the defendant was sentenced to pay “ a fine of one hundred dollars, and in default of payment thereof that the said defendant be confined in the Erie County Penitentiary at Buffalo, N. Y., for the term of one day for each and every dollar of said fine not exceeding six months, unless it shall be sooner paid.” The fine was not paid, and the defendant was confined in the penitentiary as directed by said judgment.
A writ of habeas corpus was allowed by the County Court of Erie county for the purpose of inquiring into the cause of the imprisonment of the defendant, and upon its return he was discharged on the ground “of want of jurisdiction on the part of the court in which he was tried, in that the violation of the ordinance charged against the said John Cronin could not be prosecuted as and for a criminal offense, but by civil action only; and in that said court in which said John Cronin was tried could not impose a fine in excess of $50.00; and that therefore the imposition of the fine of $100.00 was without authority and void.” An order was entered accordingly on the 25th day of May, 1904, and from it this appeal is taken.
It seems to me that the determination of the learned county judge is correct on each proposition, and that the order should be affirmed Sections 5 and 8 of chapter 9 of the ordinances of the city of Buf falo, referred to, include the offenses alleged to have been committed by the defendant and for which he was tried, found guilty and sentenced, as above stated. It is conceded that such acts constituted disorderly conduct as defined by such ordinances. Section 30 of chapter 9 provides: “ Every person who shall be convicted of the doing or commission of any of the acts prohibited in the foregoing [452]*452provisions of this Chapter ” (which includes sections 5 and 8), “ shall forfeit a penalty of. not less than two dollars nor more than one hundred dollars, unless a different penalty is specifically prescribed.”
It is under the foregoing section that the defendant was tried and convicted, and which, it is claimed, authorized the justice of the peace so to do and to sentence him to pay a fine of $100, and in default of payment to be confined in the Erie County Penitentiary. It will be observed that the section does not provide that a person violating the ordinance referred to may be sentenced to pay a fine, but only that he shall forfait a penalty, not that he may be convicted of having committed a crime, but of the doing "of the acts prohibited. A person who violates the ordinance is not to be sentenced as for the commission of a crime, but simply forfeits a certain sum, to be fixed by the justice, not exceeding $100. The language of the section is plain, is not ambiguous, and should be given its ordinary and natural meaning. I know of no instance where it has been held by any court that the payment of a forfeited penalty may be enforced by a sentence imposed as a punishment for the commission of a crime.
It is elementary that the ordinance, being in the nature of a statute which is penal in its character, must be construed most favorably to the individual. “ Statutes creating penalties or forfeitures are to receive a strict construction.” (Hasbrook v. Paddock, 1 Barb. 635; Palm v. N. Y., N. H. & H. R. R. Co., 42 N. Y. St. Repr. 219 ; Hall v. Sigel, 13 Abb. Pr. [N. S.] 178.)
The penalty forfeited may be recovered in a civil action. Its payment cannot be enforced by denominating it a fine — as the measure of punishment imposed for the commission of a crime. Payment cannot be enforced by a criminal prosecution.
“ A penalty is a sum of money which the law exacts the payment of by way of punishment for doing some act which is prohibited, or omitting to do some act which is recpiired to be done. "x" * * (The imposition of a fine or) imprisonment is not in any legal sense a penalty.” (Village of Lancaster v. Richardson, 4 Lans. 136.)
Where a statute or ordinance imposes a penalty, unless special modes are prescribed, the sums must be collected by an action at law. Such action is a civil action. (City of Buffalo v. Schliefer, 25 Hun, 215.)
[453]*453In tliat case the head note is as follows : “ A proceeding instituted in a Justice’s Court by a city to recover the penalty imposed for a violation of a city ordinance is a civil action.” And it was held in that case that a proceeding instituted by the city to recover the penalty imposed for a violation of its ordinance must be by civil action. (See, also, Woods v. City of Brooklyn, 14 Barb. 425.)
The law is very correctly stated in Fuller v. Bedding (16 Misc. Rep. 634), a case decided at Special Term : “ A criminal prosecution was not contemplated by the adoption of the ordinance. It will be observed the word penalty only is used. ‘ All persons are forbidden under penalty of one dollar,’ etc. It is true that a penalty, like a fine, is a pecuniary punishment inflicted by the law for its violation, yet there is a marked distinction which is recognized by the courts. A penalty is that which is demanded for the violation of a statute which may or may not be a crime. * * * Crimes, except the gravest, can only be punished by fine or imprisonment. A penalty is not in any legal sense a fine.”
The charter of the city of Buffalo makes ample provision for the collection of apenalty ” such as is prescribed in the ordinance in question. An action for its recovery may be brought in the Municipal Court. If judgment is recovered a body execution may issue immediately. (See Laws of 1891, chap. 105, § 23 et seg.)
That it was the intent of the city of Buffalo that the penalties prescribed in chapter 9 of the ordinances should only be recoverable in a civil action is made apparent by the change which was made in section 30 of the chapter. Prior to March, 1903, it read: “ Every person who shall be convicted of a violation of any of the provisions of this chapter shall be fined not less than two dollars nor more than one hundred dollars, and in case the person convicted of such violation shall not immediately pay such fine, he or she may be committed to the Erie County Penitentiary for the term of one day for each and every dollar of said fine not paid. * * * ”
That section as it then existed was construed by this court at the March, 1903, term, in the case of City of Buffalo v. Preston (81 App. Div. 480). It was held that such ordinance contemplated that the conviction thereunder should be in a criminal proceeding and not in a civil action. It was then contended on behalf of tire city that under the ordinance as it then was it did not authorize a crimi[454]*454nal prosecution for the violation of the ordinance in question, but that the only way to punish such violation was by civil action.
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McLennan, P. J.:
The defendant was convicted by a Court of Special Sessions held by one of the justices of the peace of the city of Buffalo of the crime of disorderly conduct, as defined by sections 5 and 8 of chapter 9 of the ordinances of said city, viz., for having made “ a noise and disturbance at the house Number 1 Letch worth Street ” in said city, and-for having used “profane and obscene language in No. 1 Letch-worth Street in violation of section 8 of Chapter IX of the ordinances of said city.” Upon such conviction the defendant was sentenced to pay “ a fine of one hundred dollars, and in default of payment thereof that the said defendant be confined in the Erie County Penitentiary at Buffalo, N. Y., for the term of one day for each and every dollar of said fine not exceeding six months, unless it shall be sooner paid.” The fine was not paid, and the defendant was confined in the penitentiary as directed by said judgment.
A writ of habeas corpus was allowed by the County Court of Erie county for the purpose of inquiring into the cause of the imprisonment of the defendant, and upon its return he was discharged on the ground “of want of jurisdiction on the part of the court in which he was tried, in that the violation of the ordinance charged against the said John Cronin could not be prosecuted as and for a criminal offense, but by civil action only; and in that said court in which said John Cronin was tried could not impose a fine in excess of $50.00; and that therefore the imposition of the fine of $100.00 was without authority and void.” An order was entered accordingly on the 25th day of May, 1904, and from it this appeal is taken.
It seems to me that the determination of the learned county judge is correct on each proposition, and that the order should be affirmed Sections 5 and 8 of chapter 9 of the ordinances of the city of Buf falo, referred to, include the offenses alleged to have been committed by the defendant and for which he was tried, found guilty and sentenced, as above stated. It is conceded that such acts constituted disorderly conduct as defined by such ordinances. Section 30 of chapter 9 provides: “ Every person who shall be convicted of the doing or commission of any of the acts prohibited in the foregoing [452]*452provisions of this Chapter ” (which includes sections 5 and 8), “ shall forfeit a penalty of. not less than two dollars nor more than one hundred dollars, unless a different penalty is specifically prescribed.”
It is under the foregoing section that the defendant was tried and convicted, and which, it is claimed, authorized the justice of the peace so to do and to sentence him to pay a fine of $100, and in default of payment to be confined in the Erie County Penitentiary. It will be observed that the section does not provide that a person violating the ordinance referred to may be sentenced to pay a fine, but only that he shall forfait a penalty, not that he may be convicted of having committed a crime, but of the doing "of the acts prohibited. A person who violates the ordinance is not to be sentenced as for the commission of a crime, but simply forfeits a certain sum, to be fixed by the justice, not exceeding $100. The language of the section is plain, is not ambiguous, and should be given its ordinary and natural meaning. I know of no instance where it has been held by any court that the payment of a forfeited penalty may be enforced by a sentence imposed as a punishment for the commission of a crime.
It is elementary that the ordinance, being in the nature of a statute which is penal in its character, must be construed most favorably to the individual. “ Statutes creating penalties or forfeitures are to receive a strict construction.” (Hasbrook v. Paddock, 1 Barb. 635; Palm v. N. Y., N. H. & H. R. R. Co., 42 N. Y. St. Repr. 219 ; Hall v. Sigel, 13 Abb. Pr. [N. S.] 178.)
The penalty forfeited may be recovered in a civil action. Its payment cannot be enforced by denominating it a fine — as the measure of punishment imposed for the commission of a crime. Payment cannot be enforced by a criminal prosecution.
“ A penalty is a sum of money which the law exacts the payment of by way of punishment for doing some act which is prohibited, or omitting to do some act which is recpiired to be done. "x" * * (The imposition of a fine or) imprisonment is not in any legal sense a penalty.” (Village of Lancaster v. Richardson, 4 Lans. 136.)
Where a statute or ordinance imposes a penalty, unless special modes are prescribed, the sums must be collected by an action at law. Such action is a civil action. (City of Buffalo v. Schliefer, 25 Hun, 215.)
[453]*453In tliat case the head note is as follows : “ A proceeding instituted in a Justice’s Court by a city to recover the penalty imposed for a violation of a city ordinance is a civil action.” And it was held in that case that a proceeding instituted by the city to recover the penalty imposed for a violation of its ordinance must be by civil action. (See, also, Woods v. City of Brooklyn, 14 Barb. 425.)
The law is very correctly stated in Fuller v. Bedding (16 Misc. Rep. 634), a case decided at Special Term : “ A criminal prosecution was not contemplated by the adoption of the ordinance. It will be observed the word penalty only is used. ‘ All persons are forbidden under penalty of one dollar,’ etc. It is true that a penalty, like a fine, is a pecuniary punishment inflicted by the law for its violation, yet there is a marked distinction which is recognized by the courts. A penalty is that which is demanded for the violation of a statute which may or may not be a crime. * * * Crimes, except the gravest, can only be punished by fine or imprisonment. A penalty is not in any legal sense a fine.”
The charter of the city of Buffalo makes ample provision for the collection of apenalty ” such as is prescribed in the ordinance in question. An action for its recovery may be brought in the Municipal Court. If judgment is recovered a body execution may issue immediately. (See Laws of 1891, chap. 105, § 23 et seg.)
That it was the intent of the city of Buffalo that the penalties prescribed in chapter 9 of the ordinances should only be recoverable in a civil action is made apparent by the change which was made in section 30 of the chapter. Prior to March, 1903, it read: “ Every person who shall be convicted of a violation of any of the provisions of this chapter shall be fined not less than two dollars nor more than one hundred dollars, and in case the person convicted of such violation shall not immediately pay such fine, he or she may be committed to the Erie County Penitentiary for the term of one day for each and every dollar of said fine not paid. * * * ”
That section as it then existed was construed by this court at the March, 1903, term, in the case of City of Buffalo v. Preston (81 App. Div. 480). It was held that such ordinance contemplated that the conviction thereunder should be in a criminal proceeding and not in a civil action. It was then contended on behalf of tire city that under the ordinance as it then was it did not authorize a crimi[454]*454nal prosecution for the violation of the ordinance in question, but that the only way to punish such violation was by civil action. This court having decided against such contention, the city changed section 30 of the ordinances to its present form, and we may assume that such change was made by the city for the purpose of obviating the effect of the decision of this court in the Preston Case (supra), and to enable it to recover in a civil action penalties which might be imposed for the violation of the ordinances specified in chapter 9; and it seems to me that such purpose was most effectually accomplished. The words “ fined ” and “ fine ” were eliminated from the section wherever they appeared and the words “ forfeit a penalty ” and “ penalty ” were substituted. Other of the language was changed where necessary so as, it seems to me, to make it plain that it was not intended that a violation of the ordinance referred to should be punishable by a criminal proceeding but only in a civil action. I am led to conclude that such is the fair and reasonable construction of the section as it now exists, and that under the authorities it cannot be construed that the “ penalty ” means “ fine; ” that the forfeited penalty may be recovered in a criminal proceeding as for the punishment of a crime, rather than in a civil action.
It will not be contended that it is optional with the city to institute either a criminal or a civil proceeding as may best suit its convenience for the purpose of enforcing observance of the ordinances. The section prescribes the penalty which is forfeited by a person who violates the ordinances. By the provisions of the city charter there is ample power to enforce it by civil process, and there being no express authority given by the ordinance to institute criminal proceedings for that purpose it should not be held to exist.
Section 717 of the Code of Criminal Procedure provides : “ When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months.”
We think that there is no j>ro vision in the charter of the city of Buffalo which can fairly be construed to mean or intend that the jurisdiction of a Court of Special Sessions was to be enlarged so as to authorize it to impose a fine for a greater amount than that specified in section 717 of the Code of Criminal Procedure.
[455]*455By the terms of some of the ordinances of the city of Buffalo their violation is punishable by a maximum fine of $250. We thinlc that when the whole scope of the charter in that regard is considered it should not be held that it was intended by the Legislature to confer authority upon Courts of Special Sessions in their discretion to impose a fine of such amount. (People v. Henschel, 35 N. Y. St. Repr. 275; People ex rel. Stokes v. Riseley, 38 Hun, 280 ; People v. Carter, 48 id. 165.)
The foregoing cases are also authority for the proposition that the fine being for a larger sum than the Court of Special Sessions was authorized to impose, the sentence was absolutely void and the judgment entered thereon did not furnish authority for the imprisonment or detention of the defendant.
It follows that the order appealed from should be affirmed.
All concurred, except Hiscock and Stover, JJ., who dissented.