Majority
p. 27Matter of the Application of George Fiegle for a Writ of Mandamus. (Supreme Court, Kings Special Term, September, 1901.)
Headnote
Hew York city — Ordinance void where it permits licensed vendors to stand with their wagons in a street and sell — Xu 1897, ch. 378, S 49, subd. 3.An ordinance of the municipal assembly of the city of New York, permitting licensed vendors and peddlers to stand with their wagons, and display and sell their wares, on both sides of a street for a distance of a block until midnight on every day of the week except Sunday, is void not only because no city has power to appropriate a •street to such a use but also because the New York city charter forbids its municipal assembly to pass an ordinance authorizing am •encroachment upon or obstruction of a street or sidewalk except temporary occupation of them during the erection or repair of a building on a lot opposite.
Application for a peremptory writ of mandamus against Bernard J. York, Deputy Police Commissioner for the borough of Brooklyn, city of Mew York, to compel him to remove obstructions from a certain street. The relator owns real estate on such street.
Donald E. Ayres for motion,
Luke D. Stapleton opposed. .
On September 5th, 1899, the Municipal Asssembly passed an ordinance that licensed vendors and peddlers be permitted to stand with their wagons and. display and sell their wares on hoth sides of Siegel street in the road or carriageway between Graham avenue and Broadway in Brooklyn borough every day excepting Sunday until midnight. The mayor approved such ordinance, and the said street has been so used ever since.
It is too well known to need the citation of authorities that there is no power in the Municipal Assembly, or in the city government in all its departments combined, to appropriate a public
p. 28
street for such a use. This depends on general principles of law which are familiar to lawyers and students of government. But in addition the charter of the city contains an express prohibition against the Municipal Assembly passing any ordinance authorizing “the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same ” (sec. 49, sub. 3).
The ordinance in question is void, and it is the duty of the respondent to clear the street of the obstructions.
Let the writ issue. .