Pilger agt. Gou. NEW YORK SUPERIOR COURT. ADAM PILGER agt. Louis Gou. Where the plaintiff's attorney gets the consent of the defendant to discontinue the action, without the knowledge of the defendant's attorney, but enters no order, nor gives any notice of discontinuance, the plaintiff must pay all subsequent costs made by the defendant's attorney in noticing the cause, taking default, &c. New York Special Term, February, 1861. THIS action was brought to recover the sum of $1,000 for an alleged slander. The plaintiff in his complaint charges the defendant with having, on the 12th July, 1859, uttered in the presence and hearing of a great number of persons, "that plaintiff poisoned his wife; he administered to her poison, or some drug, for the purpose of having her conducted to a lunatic asylum;" "that he has bribed some physicians, and paid them ten dollars, to assist him to accomplish his design," meaning thereby that plaintiff had bribed a physician to give a certificate of the insanity of his said wife, so that she should be conveyed to a lunatic asylum; and further, that he, plaintiff, has so done to enable said plaintiff to cohabit and live with another female. The defendant, by his answer, specifically denied all the allegations of the complaint. On the 11th instant, the cause being reached, the plaintiff not appearing, the defendant moved the court to dismiss the action with costs, which motion was thereupon granted. The plaintiff's attorney, upon his own affidavit, now moves to discontinue this action, and produces a consent purporting to be signed by the defendant and plaintiff's attorney on the 24th March, 1860. The motion was opposed by A. H. REAVEY, defendant's counsel. RANKEN & REAVEY, defendant's attorneys. ROBERTSON, Justice. The plaintiff's attorney seems to have obtained the defendant's consent to discontinue with Lindenmuller agt. The People. out the knowledge of the attorney, and allowed the latter to go on noticing the cause and taking the default of the plaintiff without applying to the court to enter an order of discontinuance. Although the default is excused, the attorney is entitled to the costs he has been put to by the plaintiff's neglect. The default may, therefore, be opened, and an order for discontinuance entered, upon the plaintiff's paying the cost of the term, being ten dollars, with any disbursements by the defendant's attorneys, and the costs of opposing the motion, fixed at ten dollars. SUPREME COURT. GUSTAV LINDENMULLER, plaintiff in error agt. THE PEOPLE, defendants in error. The Christian religion has always been engrafted upon our laws and entitled to protection as the basis of our morals and the strength of our government. Therefore, every act done maliciously, tending to bring religion into contempt, may be punished at common law, and the Christian Sabbath, as one of the institutions of that religion, may be protected from desecration by such laws as the legislature may deem necessary to secure to the community the privilege of undisturbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society. The statute (April, 1860,) prohibiting certain exhibitions and plays on Sunday, is not unconstitutional, because, the legislature are the sole judges of the acts proper to be prohibited with a view to the public peace, and as obstructing religious worship, and bringing into contempt the religious institutions of the people. Besides, the establishment and regulation of the Sabbath as a civil and political institution is within the just powers of the civil government; the right of the legislature, therefore, to control and regulate it, and its observance, not affecting to interfere with religious belief or worship, faith or practice, is a necessary sequence. The legislature having declared substantially that Sunday theatres are a nuisance, and come within the description of acts and practices which are not protected by the constitution, the court could not, if it would, review their discretion and sit in judgment upon the expediency of their acts. (This agrees with People agt. Hoym, 20 How., 76, N. Y. Superior Court, HoFFMAN, Justice.) New York General Term, May, 1861. Present, CLERKE, SUTHERLAND and ALLEN, Justices. Lindenmuller agt. The People. APPEAL from a judgment of conviction of the plaintiff in error. F. S. STALKNECHT, H. L. CLINTON and J. T. BRADY, for plaintiff in error. N. J. WATERBURY, district attorney, and J. H. ANTHON, for defendants in error. By the court, ALLEN, Justice. The constitutionality of the law under which Lindenmuller was indicted and convicted does not depend upon the question whether or not christianity is a part of the common law of this state. Were that the only question involved it would not be difficult to show that it is so, in a qualified sense-not to the extent that would authorize a compulsory conformity in faith and practice to the creed and formula of worship of any sect or denomination, or even in those matters of doctrine and worship common to all denominations styling themselves christians, but to the extent that entitles the christian religion and its ordinances to respect and protection, as the acknowledged religion of the people. Individual consciences may not be enforced; but men of every opinion and creed may be restrained from acts which interfere with christian worship, and which tend to revile religion and bring it into contempt. The belief of no man can be constrained, and the proper expression of religious belief is guaranteed to all; but this right, like every other right, must be exercised with strict regard to the equal rights of others; and when religious belief or unbelief leads to acts which interfere with the religious worship, and rights of conscience of those who represent the religion of the country, as established, not by law, but by the consent and usage of the community, and existing before the organization of the government, their acts may be restrained by legislation, even if they are not indictable at common law. Christianity is not the legal religion of the state, as estab Lindenmuller agt. The People. lished by law. If it were, it would be a civil or political institution, which it is not; but this is not inconsistent with the idea, that it is in fact, and ever has been, the religion of the people. This fact is everywhere prominent in all our civil and political history, and has been from the first, recognized and acted upon by the people as well as by constitutional conventions, by legislatures and by the courts of justice. It is not disputed that christianity is a part of the common law of England; and in Rex agt. Woolston, (Str., 834,) the court of King's Bench would not suffer it to be debated, whether to write against christianity in general was not an offence punishable in the temporal courts at common law. The common law, as it was in force on the 20th day of April, 1777, subject to such alterations as have been made, from time to time, by the legislature, except such parts of it as are repugnant to the constitution, is, and ever has been, a part of the law of the state. (Const. of 1846, art. 1, Const. of 1777, § 25.) § 17; Const. of 1821, art. 7, § 13; The claim is that the constitutional guarantees for the free exercise and enjoyment of religious profession and worship are inconsistent with and repugnant to the recognition of christianity, as the religion of the people entitled to and within the protection of the law. It would be strange that a people, christian in doctrine and worship, many of whom or whose forefathers had sought these shores for the privilege of worshiping God in simplicity and purity of faith, and who regarded religion as the basis of their civil liberty, and the foundation of their rights, should, in their zeal to secure to all the freedom of conscience which they valued so highly, solemnly repudiate and put beyond the pale of the law the religion which was dear to them as life, and dethrone the God who they openly and avowedly professed to believe, had been their protector and guide as a people. Unless they were hypocrites, which will hardly be charged, they would not have dared even if their consciences would Lindenmuller agt. The People. have suffered them to do so. Religious tolerance is entirely consistent with a recognized religion. Christianity may be conceded to be the established religion, to the qualified extent mentioned, while perfect civil and political equality with freedom of conscience and religious preference, is secured to individuals of every other creed and profession. To a very moderate and qualified extent, religious toleration was secured to the people, of the colony, by the charter of liberties and privileges, granted by his Royal Highness to the inhabitants of New York and its dependencies in 1683, (2 R. L., Appendix No. 2,) but was more amply provided for in the constitution of 1777. It was then placed substantially upon the same footing on which it now stands. The constitution of 1777, § 38, ordained, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should forever thereafter be allowed, provided that the liberty of conscience thereby guaranteed should not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state. The same provision was incorporated in the constitution of 1821, art. 7, § 3, and in that of 1846, art. 1, §3. The convention that framed the constitution of 1777, ratified and approved the Declaration of Independence, and prefixed it to the constitution, as a part of the preamble, and in that instrument a direct and solemn appeal is made "to the Supreme Judge of the world," and a "firm reliance on the protection of Divine Providence" for the support of the declaration is deliberately professed. The people, in adopting the constitution of 1821, expressly acknowledged with "gratitude the grace and beneficence of God," in permitting them to make choice of their form of government; and in ratifying the constitution of 1846, declare themselves "grateful to Almighty God" for their freedom. The two first constitutions of the state, reciting that "ministers of the gospel are by their profession dedicated to the service of God and the cure of |