Opinion
April 9, 1964
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Noonan, JJ.
Order insofar as it denies plaintiff's motion for summary judgment unanimously affirmed and order insofar as it grants summary judgment in favor of defendant unanimously reversed and the judgment entered thereon vacated, without costs of this appeal to either party. Memorandum: A motion for summary judgment by the plaintiff was denied and summary judgment granted to the defendant. The plaintiff appeals from the order and judgment. The action itself sought a declaration as to whether the sale of the book Tropic of Cancer would constitute a violation of section 1141 of the Penal Law. The judgment and the order upon which it was based, which are the subject of this appeal, determined that the sale of this book would constitute a violation of that section. A necessary element to sustain a conviction for a violation of this section of the Penal Law is scienter ( People v. Finkelstein, 9 N.Y.2d 342; People v. Finkelstein, 11 N.Y.2d 300; People v. Fritch, 13 N.Y.2d 119). The scienter required is knowledge of the content of the book by one accused of violating the section ( Smith v. California, 361 U.S. 147, 149). The plaintiff does not concede that he has knowledge of the content of this book nor does the record contain anything upon which such a determination could be based.