79 N.Y.S. 331 | N.Y. App. Div. | 1902
The question upon which this case turns is a very narrow one, and relates only to the liability of the defendants to pay a fine by reason of their violation of a city ordinance. They are livery stable keepers, and own and use in their business carriages and cabs which are hired for public use. They made an agreement with the proprietor of the Hotel Imperial in the city of New York to supply carriages or cabs to that hotel and to pay the proprietor thereof ten per cent of the gross receipts. With the written consent of thas proprietor, they keep from six to eight cabs standing in front of hit premises awaiting passengers from the hotel. They have paid a license fee of three dollars each for twenty-five cabs, including those which stand in front of the Hotel Imperial, that being the license' fee chargeable upon what are called special hacks or cabs. While the defendants have the permission of the proprietor of the hotel to
It has been sought on this appeal to have this court pass upon the right of a hotel proprietor to maintain a cab service in the street in front of his premises, but that question is not involved in this appeal, and its determination is not necessary to the ascertainment of the defendants’ liability to pay the fine which has been imposed upon them. The city contends that the defendants have no right to use the street in front of the hotel as a cab stand unless they pay a license fee of twenty-five dollars for each cab and receive a permit. By section 453 of the revised ordinances of 1897 of the city of New York, which is still in force, it is provided that the owner or driver of any hackney coach or cab which shall stand waiting for employment at any other place “ than as herein provided ” shall be liable to a fine of ten dollars, to be imposed by the mayor or his first marshal, and to be sued for and recovered by the attorney for the corporation for the use of the city.
It is claimed by the plaintiff that the defendants, having no right to occupy the street in front of the Hotel Imperial with their cabs, except as stated, were liable to the fine mentioned in section 453, and such a fine was imposed by the chief of the bureau of licenses, the successor to the first marshal to the mayor. The fine not being paid, this action was brought on an agreed statement of facts, judgment was rendered in favor of the plaintiff in the Municipal Court, and on appeal to the Appellate Term of the Supreme Court was affirmed. By leave of the Appellate Term an appeal was taken by the defendants to this court.
The main subject of consideration is the right of the defendants to occupy, with their cabs, a part of the public street while waiting for employment, without paying a license fee of twenty-five dollars as is required by the provisions of the ordinances of the city of New York.
In the agreed statement of facts it appears that, under the municipal regulations, the hack system of New York city has for many years practically divided all cabs, carriages, coaches and such vehicles as are kept for hire into two classes, known and designated as public hacks and specially licensed or special hacks; that public
The defendants’ licenses for their cabs were granted under the terms of these two sections. Sections 456 and 457 relate merely to a license fee to be paid for a hackney coach, cab or carriage which it is not intended by the owner shall come upon or make use of the public stands. Those sections do not relate to a license fee to be paid by the proprietors of carriages or cabs that use the public streets as standing places while waiting for employment. It is provided in section 12 of the ordinance approved May 22, 1899, that the owner of any hack not intending to use the public stands and having the written consent of the owner or lessee of the premises, in the discretion of the mayor or the chief of the bureau of licenses, may be specially licensed and permitted to use temporarily a portion of the street in front of such premises as a stand, and shall be confined to carrying passengers from said premises. Section 13 of
If the cab proprietor desires to use his vehiclés without going upon the public stands, he must pay a license fee of three dollars. If he wishes to avail himself of the privilege of using the streets as-a private stand under the permission and provisions of sections 12- and 13 of the ordinance of 1899, for that additional right and privilege he is required to pay a fee of twenty-five dollars for each hack allowed so to stand. That does not convert the private hack stand into a public hack stand. As is well remarked by the counsel for the city, all that the ordinance does or attempts to do is to provide separate stands where each of two classes of licensed hacks may stand and to forbid each to use the stand provided for the other.
We see nothing in the requirement that the additional license fee of twenty-five dollars shall be paid for the privilege of a private stand, beyond the authority of the municipal legislature to enact. The right and the power of the city to pass such ordinances cannot be questioned. A case is not presented of an ordinance authorizing the establishment of a hack stand in front of private premises with ■ out the consent of the owner or the lessee. The privilege of using the private hack stand, according to section 12, can only be with the consent of the owner or lessee of the premises. But the consent of the owner to hacks standing in front of his premises does not exempt the hack proprietor from the payment of the license fee required by the ordinance.
The determination of the Appellate Term should be affirmed, ■ with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.
Determination of Appellate Term affirmed, with costs.
