Mayor of New-York v. Nichols — 4 Hill & Den. 209

Majority

p. 209

The Mayor &c. of the City of New-York vs. Nichols.

Headnote

A city ordinance prohibiting the sale of pressed hay mthmd inspection, and impos, ing a penalty for non-observance, contravenes the provisions of 1 R. S. 574, § 5 et seq., and is therefore void.

' Error to the superior court of the city of New-York. The plaintiffs in error sued the defendant in error before one of the assistant justices of the city of New-York to recover the amount of several penalties incurred for the violation of an ordinance of the city relating to the sale of hay, passed May 8th, 1839. The ordinance made it the duty of the inspectors to cause all pressed hay &c. which might be sold or offered for sale in the city of New-York to be inspected and weighed, and the quality and weight thereof to be marked thereon ; and provided that if any person should sell any such hay without having the same inspected and weighed according to the requirements of the ordinance, he should forfeit and pay the sum of $5 for every bundle sold. It appeared that the defendant had sold two bundles of pressed hay in violation of the ordinance, and the justice rendered a judgment for $10 in favor of the plaintiffs. The judgment was reversed by the superior court on certiorari, and the plaintiffs sued out a writ of error.

p. 210

J. McKeon, for the plaintiffs in error.

A. L. Jordan, for the defendant in error.

By the Court,

It is provided by statute, that every person who shall put up and press any bundle of . hay for market, shall mark or brand, in a legible manner, the initials of his Christian name, and his surname, at full length, and the name of the town in which he resides, on some board or wood attached to the bundle. (1 R. S. 574, §5.) No person shall put or conceal in any such bundle of hay, any wet or damaged hay, or other materials, or hay of an inferior quality to that which plainly appears upon the outside of the bundle. (Id. ^ 6.) Any person who shall put up, or cause to be put up and sold, any bundle of pressed hay in violation of the preceding provisions, shall be liable to be prosecuted in an action of debt by the aggrieved party; and if the court shall be satisfied, from the testimony given, that any of the preceding provisions have been violated, judgment shall be rendered for a penalty of, one dollar against the defendant, in favor of the plaintiff, together with such damages as he has suffered thereby, with costs of suit. (Id. § 7.) Such hay may be sold without deduction for tare, and by the weights as marked, or any other standard weight that shall be agreed upon between the buyer and seller. (Id, § 8.)

These provisions obviously authorize a sale of pressed hay without inspection, and the corporation of the city of New-York possesses no power to repeal or supercede them. If they are violated, a remedy is pointed o.ut j and this, if any, must be resorted to. The system of inspecting hay is abolished by the statute, and, in place of it, the seller is required to prepare the article for market in a particular manner, at the peril of being subjected to the penalties annexed.

The eighth section of the revised statutes-was amended by the act of 1835, (Sess. L. of ’35, p. 280,) so as to allow an inspection in case the parties desired it j but the provision is not

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obligatory, and the seller may still dispose of his hay without having it inspected if he choose to do so.

Judgment affirmed;