7 N.Y.S. 237 | N.Y. Sup. Ct. | 1889
The action was to recover back sums of money paid by the plaintiff and his assignors to the defendant for huckster’s license fees. The judgment appealed from reversed that of the municipal court, which dismissed the plaintiff’s complaint. The county court held that the ordinance of the common council of the city of Bochester, which provided for the licenses-in question, was void for the reason that it assumed to delegate to the mayor an authority given by statute to the common council itself, and which could only be exercised by it. In this view of the case we think the county court, erred. The charter of the city of Rochester (section 40) gives to the common council the “power to make * * * such ordinances, by-laws, and regulations as it may deem desirable within the said city for the following purposes;” among them, by subdivision 19, “to regulate the vending of wood,, coal, or other fuel, meats, vegetables, fruits, fish, poultry, milk, and provisions of all kinds, * * * and to prescribe the fees tó be paid for a license
Counsel for the respondent (here) makes the further objection to the ordinance that it discriminates in favor of some and against other forms of traffic, to all of which the statute equally applies. There does not seem to be much force in the objection, even under the first subdivision (subdivision 19) quoted above; but it is entirely obviated by the second subdivision quoted, (subdivision 24,) which selects hawkihg and peddling on the streets as special objects for the regulating and restraining power conferred upon the common council. It is further objected on the part of the respondent that the licenses are illegal and void because they are not signed by the mayor, but only by the city clerk. There are at least two answers to this objection: (1) So far as appears, the licenses were as effectual to secure to the plaintiff and his assigns the privilege's paid for as if they had been signed by the mayor; (2) no objection was made by the parties taking the licenses on this ground. So far as this objection was concerned, the payment of the license fees was voluntary. The licensees were not required to pay their money'for licenses not in due form; and the city, having accepted their money, would have been estopped to question the regularity of their licenses. That the adoption of an ordinance providing for license was a valid exercise of power conferred by the legislature upon the common council is not open to question. People v. Mulholland, 19 Hun. 550, affirmed, 82 N. Y. 324. The judgment of the county court should be reversed, and that of the municipal court of Rochester affirmed. All concur. So ordered, with costs.