Mayor, Aldermen, & Commonalty v. Wood — 15 Daly (N.Y.) 341

Majority

p. 341

The Mayor, Aldermen, and Commonalty of the City of New York, Appellants, against Walter Wood, et al., Respondents.

(Decided July 22nd, 1889.)

Headnote

In an action for the recovery of a penalty for violatien of a city ordinance, the ordinance was particularly mentioned and its substance indorsed on the summons. Held, that this was a sufficient compliance with the requirement that, in an action for a penalty given by statute, if a copy of the complaint is not served with the summons, “ a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form: • according to the provisions of,’ etc.; adding such a description of the statute as will identify it with convenient certainty ” (Code Civ. Pro. § 1897).

An ordinance of the City of New York of 1880 provided that “no person shall place, hang, or suspend, any greater distance than twelve inches in front of and from the wall of any house,” etc., any sign, etc. Held, that it was not repealed by implication by the ordinance of 1886, providing that “ signs may be placed on the. fronts of buildings, and shall be securely fastened, and, except in the case of swinging signs, shall not project more than one foot from the house wall;” as the two ordinances were not inconsistent.

Appeal from a judgment of the District Court in the City of New York for the Eleventh Judicial District.

The action was brought to recover a penalty for a violation of an ordinance of the City of New York. The justice of the district court rendered judgment for defendants. From the judgment plaintiffs appealed to this court.

W. A. Boyd, for appellants.

Respondents, in person.

[ Present, Van Hoesen and Allen, JJ.]— The summons was properly indorsed. The ordinance violated is article 4 of chapter 6 of the Revised Ordinances of

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1880, and not only is it particularly mentioned, but its substance is indorsed upon the summons. The defendants thus had the means of ascertaining from. the summons what ordinance they were charged with having violated, and of learning the provisions of the ordinance from the indorsement upon the summons. A fuller compliance with section 1897 of the Code, as that section was construed by this court in The Mayor v. Eisler (2 Civ. Pro. Rep. 125), could not be desired.

It is argued that the ordinance referred to was repealed by the ordinance adopted on March 30th, 1886. It is not expressly repealed, for it is not mentioned, and the only question is, was it repealed by implication ? We ask, first, is the ordinance of 1880 inconsistent with the ordinance of 1886 ? To that we think that only one answer can be given : No. The two ordinances fit perfectly, and together form a harmonious whole. The ordinance of 1886 provides that “Signs may be placed on the fronts of buildings, and shall be securely fastened, and except in the case of swinging signs, shall not project more than one foot from the house-wall." The ordinance of 1880 provides that “No person shall place, hang, or suspend any greater distance than twelve inches in front of and from the wall of any house or store or other building, any sign, show-bill, or show-board, under the penalty of ten dollars for each offense." It is a rule of construction that permission to do a thing shall not be implied from the use of negative words that forbid the doing of a different thing; and, therefore, it may well be said that permission to place a sign in front of the house less than a foot in advance of the front wall is not to be implied from the ordinance that inhibited the placing of a sign more than a foot in advance of the wall ; but yet the fact is obvious that no punishment is prescribed where the sign does not project more than twelve inches. It may be assumed that the common council, when it passed the ordinance of 1880, intended to tolerate signs that did riot stand" more than a foot in front of the house line, but a bare toleration was not all that the citizens desired, and for that reason the ordinance of 1886 was adopted, which gave in clear and apt words permission to do that which the ordinance of 1880

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merely refrained from visiting with a penalty. But where the sign is placed more than a foot in advance of the front of the house, it is no more protected by the ordinance of 1886 than by the ordinance of 1880. What inconsistency is there then in punishing, under the ordinance of 1880, an act that is unwarranted by the ordinance of 1886? Both ordinances in words of equivalent import forbid the placing of a sign more than twelve inches in front of the house-line. The ordinance of 1880 provides a penalty in such a case. Why was it necessary to provide another penalty, or to provide' the same penalty a second time ? Instead of beinginconsistent with the ordinance of 1886, the ordinance of 1880 harmonizes with it perfectly, and is essential to the completeness of the system devised for the exhibition of signs ; a system that encourages signs that do not project more than a foot, but forbids signs that project a greater distance.

We think the ordinance of 1880 is still in full force, and are of opinion that the judgment should be reversed and a new trial ordered with costs to the appellants to abide the event.

Judgment reversed and new trial ordered, with costs to appellants to abide event.