118 Misc. 341 | N.Y. Sup. Ct. | 1922
This is an application for an order in the nature of a peremptory mandamus directing the appropriate authorities of the city to remove and abate the pushcart market now maintained between the hours of nine a. m. and five p. m. on Park avenue, between One Hundred and Eleventh and One Hundred and Sixteenth streets, under the authority of the board of aldermen. The application is made jointly by a property owner and by an association of occupants of stores along the avenue at the point where the market is located. It is, of course, axiomatic that ordinarily the municipality has no authority to authorize obstructions in the streets. Kelsey v. King, 1 Tr. App. 133; Johnson v. City of New York, 186 N. Y. 139; Peace v. McAdoo, 46 Misc. Rep. 295; affd., 110 App. Div. 13; People v. Lowber, 28 Barb. 65, 69. On the other hand, a market is more or less of a public institution. In early times in England the occupation for market purposes of important streets was so common as to have left its impress on the names of many thoroughfares. There is also a still existing practice of holding costermonger markets. Keep v. Vestry of St. Mary’s, Newington, L. R. [1894] 2 Q. B. 524. Whether the markets preceded the streets or the streets the markets is not always clear. Mosley v. Walker, (1827) 7 B. & C. 40, 52, 53; King v. Starkey, (1837) 7 Ad. & El. 95, 105. It suffices to note that a public interest in markets has always been recognized. The peddler or hawker also has been regarded as pursuing a lawful calling on the highway subject to reasonable limitations and appropriate control. Collender v. Reardon, 138 App. Div. 738. The learned corporation counsel urges that under the Farms and Markets Law (Laws of 1917, chap. 802) authority has impliedly been conferred upon the municipal authorities to appropriate for market purposes any part of a street not devoted to any other use. This inference, it is suggested, is to be drawn from section 70 of the act defining a market as “ any part of a street * * * assigned to or set apart by law or ordinance or other competent authority to be used for such purpose,” and from section 78 that the “ local authorities of a city * * * may designate for use as public markets any lands owned by the city and not dedicated or devoted to another inconsistent use.” Although those provisions are far from expressly going to the length claimed, they do, in the light of the declaratory preamble in section 3 of the act, and the known emergency which inspired its passage, present a seriously arguable proposition. A further consideration in the instant case
Ordered accordingly.