For that very reason the final test of the law, as recognized by the courts of this State, is simple. It is only whether the thing is literature as distinct from a simple effort to portray the obscene. It is quite true that scattered here and there in the books, are to be found expressions to the effect that a thing may be literature and yet be within the statute. The argument is that there are two classes in the community, the intelligent and the ignorant. Something may be literature and the intelligent will so appreciate it, but the statute is to protect the other class--the ones who ought not to be entrusted with books at all. The _sequitur_ is that a book is unlawful unless it can be read by the ignorant, by the child incapable of appreciating the sustained thought. To this effect will one find expressions in _U. S._ v. _Clark_ (38 Fed. 734), and the General Term decision in _People_ v. _Muller_ (32 Hun, 209). But one will never find that the Court of Appeals of this state has spoken to that effect, or has made that classification. It did not do so in affirming the judgment in _People_ v. _Muller_ (96 N. Y. 408), which, by the way, dealt with a picture and not a book; and it certainly did not do so when it expressed itself in _People_ v. _Eastman_ (188 N. Y. 478) or in _Halsey_ v. _N. Y. Society_ (234 N. Y. 1). In _People_ v. _Eastman_, as we have said, the article was undoubtedly such as should not fall into the hands of a child; and in _Halsey_ v. _N. Y. Society_ the majority opinion frankly admits that there are paragraphs in the book which, standing alone, are undoubtedly indecent. Nor has the successor of the General Term, the Appellate Division, spoken to that effect. Its decision in _People_ v. _Brainard_ (192 App. Div. 816) certainly does not bear out such interpretation. Nor have judges, sitting at Special or Trial Term, or in the Appellate Term, so expressed themselves. O’Brien, _J._, certainly made no such distinction in _Matter of Worthington_ (30 N. Y. Supp. 363; 24 L. R. A. 110). Nor did Seabury, _J._, make any such distinction in _St. Hubert Guild_ v. _Quinn_ (64 Misc. 336). If that were the law of this state, we say, with all sincerity, that literature would have to be reduced to the level of the movies; the stage would be reduced to the rendition of charades, thousands of plays being barred, ranging from those of which Shakespeare was the craftsman, to the productions of Somerset Maugham; Swinburne’s Chorus in “Atalanta in Calydon” would be on the index, and Keats would be barred from any public library because of “Endymion” and “The Eve of St. Agnes”. Nay, Sir Walter Scott’s collection of border minstrelsy would be barred because it contains those two exquisite ballads, “The Eve of St. John” and “Clerk Saunders and May Margaret”; and, incidentally, the “Oxford Book of English Verse” should be burned because it contains reprints of all these things. But it is