38 Misc. 129 | N.Y. App. Term. | 1902
Upon an agreed state of facts, a justice of the Municipal Court gave judgment against the defendants for ten dollars, the amount of a fine imposed upon them by the chief of the bureau of licenses, for a violation of section 453 of the revised ordinances of the city of Few York, and the costs of the action. From that judgment the defendants have appealed. The essential facts are, that the defendants are liverymen in the borough of Manhattan, and keep cabs for hire. Under an agreement with the proprietor of the Hotel Imperial, in this borough, by which they supply carriage service to the hotel and its patrons and pay the proprietor ten per cent, of their gross receipts, they, with the written consent of the proprietor of the hotel, keep from six to eight cabs standing in front of the hotel while waiting to be hired by the guests of the house. The period of waiting for employment averages from fifteen to twenty minutes for each cab. The defendants have paid the city a yearly license fee of three dollars each for .twenty-five of their cabs, as “ special hacks.” These cabs stand in front of the hotel, but without the permission
We think the true construction of sections 12 and 13, of the general ordinances of May 22, 1899, is that the special license fee of twenty-five dollars, required to be paid for the privilege of standing in front of private premises, with the owner’s consent, does not necessarily carry with it the right to the exclusive use of such a stand. But, if it were otherwise, the ordinance would not, for that reason, be invalid. That the right to grant such an exclusive use of a portion of a street for a cabstand is beyond the power of the city is certainly not an obvious proposition. There must be some Emit to the' number of carriages which shaE be allowed to stand in front of a hotel, and it would be manifestly unwise and unjust to permit as many Everymen as were willing to pay the Ecense to occupy such a stand. In the case of, a large house, where the demands for carriages were numerous and the profit remunerative, the result of granting unlimited permits would be continual strife and turmofi between carriage drivers — endangering the peace, obstructing the street and impairing the value of the stand for any one. This is one of those incidents of administration which must be intrusted to the wise judgment of the officer who is charged with the execution of the ordinance in question. People ex rel. Thompson v. Brookfield, 6 App. Div. 398, 403.
Metropolitan Ex. Co. v. Newton, 4 N. Y. Supp. 593, cited by defendants’ counsel, is not in point here. There the sole question was whether a party could lawfully inclose with a fence part of a street, to the complete exclusion of the public, even under the protection of a resolution of the common council of the city; and the court held, of course, that the council had no power to- authorize the' entire appropriation of a street to private use. There is no analogy in that case to the one at bar.
The relation of principal and agent did not arise under the agreement in question. In that, the parties contracted with one another as principals, on equal terms, the defendants for the right to the patronage of the hotel, and the proprietor of the hotel for a share of the receipts from that patronage. In connection with
Touching the power of the city to pass the ordinances in question, that power is amply conferred by the Legislature, acting within constitutional limits, and there would be no profit in a particular examination or collection' of the cases on that subject. Indeed the only point made affecting the validity of any of the ordinances involved in this action, relates to that clause of section 13 of the general ordinances referred to, which is expressed as follows: “ and no other licensed hackman shall come upon or use said stand,” and the views already expressed dispose of defendants’ contention in that respect.
Both questions, propounded in the case as agreed upon, must be answered in the affirmative, and the judgment affirmed, with costs.
Freedman, P. J., and Truax, J., concur.
Judgment affirmed, with costs.