194 Misc. 96 | N.Y. Sup. Ct. | 1949
The defendant moves for judgment on the pleadings in this action brought to declare sections 118-b, 118-c and 118-e of the Sanitary Code of the City of New York to be inconsistent with section 6814 of the Education Law of the State of New York and unconstitutional, void and unenforcible. The question involved is whether the field covered by the Code provisions is fully covered by the statute in such manner as to produce inconsistency and invalid exercise of legislative power. It might appear that the essential characteristic of the State statute is that it covers the entire field with respect to what may or may not be done within the six months ’ period. It is the opinion of the court, however, that in the light of the most serious condition of health hazard which tlm Code provisions are intended to ameliorate, it cannot be said that they have actually taken away what the statute permits, as was done in Matter of Kress & Co. v. Department of Health (283 N. Y. 55). There the State statute permitted the use of a cellar in connection with a particular business. Under local law it was pro
The motion is granted. Settle order.