People v. Cuneen

The defendant in each of the above cases has appealed from a judgment of the City Magistrates ’ Court convicting him of a violation of the city ordinances relating to hacks, cabs and taxicabs. The defendants were tried separately, but all three cases involve the construction of the same sections of the code of ordinances. The constitutionality of the ordinances was challenged upon the trial but their validity, having been established in recent decisions, was conceded upon these appeals. Waldorf-Astoria Hotel Company v. City of New York, 212 N. Y. 97 ; Yellow Taxicab Co. v. Gaynor, and Mason-Seaman Transportation Co. v. City of New York, 82 Misc. Rep. 94 ; affd., 150 App. Div. 893 ; Mason-Seaman Transportation Co. v. Mitchell, 89 Misc. Rep. 230 ; affd., without opinion, 168 App. Div. 915 .

The evidence upon all essential points is undisputed. The defendants were in each case chauffeurs, employed by the Mason-Seaman Transportation Company. The appeals in the three cases raise the questions whether the driver of a vehicle not licensed and equipped in accordance with the ordinance, who solicits passengers for hire within a railroad station, or who answers a call sent to a private garage, or who takes up a fare at a hotel in the city of New York, is guilty of a violation of the city ordinances regulating the public hack business.

Section 109, subdivision 1, of article 8, chapter 14, of the code of ordinances of the city of New York,

The provision with respect to the equipment of vehicles is, in part, as follows: “ Section 101. Taximeters. When required. Every public hack driven by mechanical power, seating four passengers or less, shall have affixed thereto a taximeter of a size and design approved by the commissioner.”

The records in each of the cases on appeal show that the vehicles were driven by mechanical power, had a seating capacity of four passengers but had no taximeters affixed, and the question is therefore presented whether the drivers were engaged in the business or under the circumstances set forth in section 109 of the Code of Ordinances.

The driver of a vehicle which is not equipped with a taximeter, as prescribed, is liable to fine or imprisonment, or both, if he “ engages in the business of a public hack, or attempts to engage in such business or solicits for hire passengers upon the streets.”

By section 80, subdivision 1, a public hack is defined: “ Public Hack, a vehicle plying for hire, for which public patronage is solicited upon the streets.”

It therefore appears that in each of the qualifying phrases defining driver in section 109 is found the element not only of plying or soliciting for hire but also that such soliciting Is 1 * upon the streets. ’ ’

Section 80, subdivision 7, contains the further definí

“Any vehicle that has a taximeter affixed and uses the streets of the city for the purpose of carrying passengers for hire, shall be deemed a public hack and must be licensed under this article.”

This definition broadens the scope of the ordinance by including among the vehicles which must be deemed to be public hacks one which uses the streets of the city for the purpose of carrying passengers for hire, regardless of whether the solicitation was upon the streets or elsewhere, provided, however, that such vehicle has a taximeter affixed. As it is conceded that in the cases under consideration no taximeters were affixed to the vehicles in question, they are not taxicabs, and, therefore, not public hacks within the definition in this subdivision. The ordinance does not require that every coach driven by mechanical power shall have a taximeter affixed but it does provide that if such vehicle has a taximeter affixed it is included within the definition of a public hack and, therefore, required to be licensed and equipped and to charge the rates provided by the ordinances. If it has not such a taximeter affixed then it need only comply with the requirements of the ordinances when plying or soliciting for hire public patronage or passengers upon the streets. It therefore becomes necessary to determine whether there was such plying or soliciting.

(1) In the case of Cuneen, the defendant, on the day in question, pursuant to instructions of a despatcher of the Mason-Seaman Transportation Company, drove a vehicle from the company’s garage to a stand at the Pennsylvania Railroad station, located 100 or 150 feet from Seventh avenue, within the property of the Pennsylvania Railroad Company, where he stood for about fifteen minutes, and after a starter of

It further appears that licensed cabs do not use the stand where the defendant’s cab stood in the Pennsylvania station, but use another section.

The defendant further testified, with respect to the method of doing business, that in the morning he left the garage, went to the station and stood in line and received at the station as passengers persons who came from the trains, and that after taking them to their destination he returned to the station repeating the process from eight a. m. to eight-thirty p. m.

In support of the conviction it is contended that a solicitation of business by the driver of a vehicle within a railway station is engaging in the business of a public hack or soliciting for hire upon the streets, within the prohibition of the ordinance. It is undoubtedly within the legislative power to prohibit generally a plying for hire, unless certain reasonable conditions are complied with. An examination of the ordinance fails to show such general prohibition. In the definition of a public hack the plying for hire, which is regulated, is one ‘1 for which public patronage is solicited upon the streets ” and section 109, defining violations, does not broaden the regulation for it only includes within its purview the owner and driver who engages in the business of a public hack or solicits for hire passengers upon the streets of the city of New York.

It is also contended that the place where the defendant stood was op.en to the public; but the public which had a right to traverse it was limited to those engaged in travel upon the trains of the railway company, who

An examination of the authorities fails to disclose a decision in the state of New York or in the United States construing a similar ordinance upon this precise point. The case of City of New York v. Hexamer, 59 App. Div. 4 , is not in point as the court held that under the Greater New York Charter the municipal assembly had no authority to impose the ordinance there in question upon a person engaged in conducting a livery stable in the state of New Jersey, who at intervals sends his carriages into the city of New York for the sole purpose of meeting the steamers of a transAtlantic line and conveying the passengers to their respective destinations.

The construction here placed upon the ordinance is, however, not without authority. Similar enactments regulating public hacks in the city of London have been construed by the English courts. In Case v. Storey, L. R. (4 Ex.) 319, the question before the court was whether a hackney carriage, which was inside the station of the Great Northern Railway Company at King’s Cross, in the parish qf St. Paneras, within the metropolitan police district, by leave of the railway company for the accommodation of their passengers,

In Clarke v. Stanford, L. R. (6 Q. B.) 357, the defendant was charged with unlawfully plying for hire with an unlicensed hackney carriage at the Harrow railway station of the London and North Western Railway Company, within the limits of the metropolitan police district, which were also those of the Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. ch. 115). The act defined a hackney carriage, which was required to be licensed and to observe the regulations prescribed by the act, as “ any carriage

In Allen v. Tunbridge, L. R. (6 C. P.) 481, it was held, following Clarke v. Stanford, that the defendant, who solicited two persons who hired a carriage at a railway station of the South Eastern Railway Company at Cannon street, was plying for hire within section 7 of 32 and 33 Victoria, chapter 115. In the argument it was pointed out that the same section made a difference between the definition of a hackney carriage and the definition of a stage carriage. The definition

It is urged, however, that the word “street,” as used in the ordinance, must be construed to include any place, because of the definition of the word “ street ” as found in article 1, section 1, subdivision 18, which is as follows: “Street, any street, avenue, road, alley, lane, highway, boulevard, concourse, driveway, culvert, sidewalk and crosswalk, every class of public road, square and place, except marginal wharf; ”. The word “place” in this definition is qualified by the word “ public ”, which limits not only “ road and square ’’but also “ place ”, and in my opinion is intended to refer to the same kinds of thoroughfares as those previously denominated in the definition, it being not only the intention to include such streets as are specifically denominated as “places,” as for instance St. Mark’s Place and Waverly Place, but also any other space or opening dedicated to the public use.

In Case v. Storey, supra, Kelly, C. B., in construing the words ‘ ‘ in any street or place ’ ’ found in section 35, 1 and 2 Williams, 4 , chapter 22, in which the penalty is imposed on the driver of any numbered hackney carriage standing or plying for hire in any street or place, referring to the argument that a railway station was a “ place ” within the meaning of such language, said: Mr. Denman argued that ‘ place ’ is a large term; but we must take it as only meaning a place ejusdem generis with a street.”

In Ex Parte Kippins, L. R. (1 Q. B. D.) 1, construing section 17 of the London Hackney Carriage Act, 1853, which provided, “ Every driver of a hackney carriage who shall refuse to drive such carriage to any

(2) In the case of Forbes, the defendant had not solicited patronage but had responded to a telephone call sent at the request of a lady residing in an apartment house, No. 128 East Thirty-fourth street, by the hall-boy, and received by the starter of the Mason-Seaman Transportation Company at their sub-garage, the private property of the company on Thirty-second street. Under the instructions of the starter, the defendant went to the address and received a passenger, whose name had been given him by the starter and who had been waiting "for him and took her to a department store, where he waited about eight minutes for her and then drove her to the G-rand Central Station where, after collecting one dollar, he was served with "a summons. He then returned to the Thirty-second street garage and waitéd for another call, and being called made several trips on the same day from the garage under similar circumstances.

In the case of Haverty’s Taxicabs, Inc., v. Mitchell, N. Y. L. J., Aug. 26, 1915, the Supreme Court in" the. second department granted an injunction pendente lite restraining the enforcement of the public hack ordinance approved January 2, 1915, in so far as such enforcement attempted to interfere with the operation of taxicabs which had no meters affixed and which were sent upon call from private garages. "Mr. Justice Callaghan said: “ The ordinance being constitutional,

In support of the judgment in this case, Mason-Seaman Transportation Co. v. Mitchell, 89 Misc Rep. 230 , affd., without opinion, 168 App. Div. 915 , decided by the Supreme Court in the first department, is cited as being at variance with the decision in the second department. In the first department an application for an injunction pendente lite to restrain the defendant from enforcing against it the provisions of the same public hack-ordinance was denied, Mr. Justice Cohalan saying: ‘ ‘ The amendment of which the plaintiff complains reads: ‘Any vehicle that has a taximeter affixed and uses the streets and avenues of the city of New York for the purpose of carrying passengers for hire shall be deemed a public hack and licensed under this ordinance.’ This ordinance was so drawn as to provide that all cabs, whether they be employed in public or private business, should come within the provisions of the public hack ordinance.” I am of the opinion that the words “ all cabs ” were

Prior to the amendment of January 2, 1915, even taxicabs having meters attached which were operated from private garages were exempted from the operation of the ordinance, and by the amendment this exemption was removed. This amendment, therefore, extended the operation of the ordinance to all cabs having taximeters affixed and which used the streets but did not extend the operation of the ordinance to taxicabs which had no taximeters affixed and which did not solicit patronage upon the streets, but which

A similar view was held by Cockburn, Ch. J., in Clarke v. Stanford, supra, who, in answer to the suggestion of counsel, if the carriage was in the private yard of a hotel keeper, or waiting on the premises of a gentleman, it could not be said to be plying for hire, said: “ The case put by Mr. Bosanquet, of a carriage being on a man’s own premises ready to go out if required, is not what, can be understood as ‘ plying for hire ’ within the meaning of this act. ’ ’

In Skinner v. Usher, L. R. (7 Q. B.) 423, the defendant kept his hackney carriage upon a vacant piece of unenclosed ground which was open to the street and

(3) In the case of Woods, the defendant on the day in question drove into the Grand Central Station, where a passenger alighted. The defendant asked for fifty cents which the passenger handed the defendant and went into the station. The defendant was then served with a summons. There was no evidence as to whether the defendant had solicited the patronage of his fare upon the street or elsewhere. The defendant stated to the officer that he came from the Hotel Astor. The record does not disclose the manner in which the cab was engaged or where it was engaged, and, in fact, there is nothing in the record to indicate whether this cab was a private or a public hack. The record, therefore, fails to establish the commission of the offense charged.

Upon the argument, however, it was stated by conn

The taking of a cab from a hotel is not different in principle from the taking of a cab from an apartment house, restaurant, theatre or private residence. If the fare is solicited upon the street the driver of the cab must comply with the ordinance. If the cab has a taximeter affixed it must comply with the ordinance. If a cab is called to a hotel at the request of the fare from a private livery or garage and has no meter affixed then it is not within the purview of the ordinance.

A similar question was before this court in the case of People v. Milne, 86 Misc. Rep. 417 . In that case, the defendant was driving a taxicab belonging to the Yellow Taxicab Company, which, had a starter on Broadway in front of- the entrance to Churchill’s restaurant. The defendant was seen standing in front of the restaurant for about seven minutes and when approached by one whom he recognized to be an officer drove away, subsequently taking up the position in which the complainant had first seen bim and was thereupon arrested and charged with a violation of article 3, section 1, of the public hack ordinance of the city of New York, adopted May 27, 1913, approved June 2, 1913, which provides that no public hack shall ply for hire upon the streets of the city of New York without first obtaining a license from the bureau of licenses. The defendant’s vehicle had a taximeter affixed and was equipped with a movable flag or device which when up displayed the word ‘ ‘ vacant. ’ ’ The court held that the placing of such a cab on a' public street where it is accessible to those who may wish to hire it and the solicitation of passengers for hire by word, act or exhibition of appropriate signs or devices

The manner in which 'the business is conducted determines whether it is a private or public hack business within the definition of the ordinances: One who is maintaining a private livery or garage may solicit business upon the streets and thereby engage in the business of a public hack and be subject to the regulation of the ordinances. In the case of City of Brooklyn v. Breslin, 57 N. Y. 591 , it was held that one who bad carts for his own business but undertook to let them out for hire, thereby pursued a separate and independent business as a cartman and was required to obtain the license prescribed for such business. So a private liveryman may not, under the guise of con

The same distinction was made by Montague Smith, J., in Allen v. Tunbridge, supra; 485, when he said with respect to Clarke v. Stanford: “It appears to have been held there, that if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the act. That is very different from a customer going to a job-master to hire a carriage.”

The operator of a motor vehicle exercises a privilege and not a right and the legislature has the power to prescribe the conditions under which the privilege shall be exercised. Yellow Taxicab Company v. Gaynor, 159 App. Div. 893 , Ingraham, P. J., 895; People v. Rosenheimer, 209 N. Y. 115 . This authority is.based upon a police power to regulate the use of the streets for the general welfare. As cities grew this regulation became necessary both for the protection and the

There can be no question that the board of aider-men, under the authority vested by the legislature and the Greater New York Charter, has power to provide ordinances for the regulation of the use of the streets by any vehicle, mechanically driven or otherwise, and whether it has or has not a taximeter affixed and whether it is used as a private or a public livery or engaged on the street, at a railroad station or at a private garage or elsewhere.

It is contended that it was the purpose of the framers of the ordinance to apply these regulations to all mechanically driven vehicles plying for hire or using the streets in the city of New York. If this be so, appropriate language has not been used to formulate such purpose. The following are subject to regulation, under the existing ordinances: (1) All owners and drivers of vehicles which have taximeters affixed and who use the streets of the city for the purpose of carrying passengers for hire, whether they solicit the passengers in a private or a public place and whether they are hired at private garages or elsewhere. (2) All owners and drivers of vehicles either with or without taximeters who ply for hire and solicit or attempt to solicit public patronage or passengers upon the streets.

The regulations contained in the ordinances do not apply to the owners or drivers of vehicles which have no taximeters and who solicit patronage or are hired upon private property.

Under the authorities already cited, there may be a question, however, whether the words “ plying for hire ” would include a vehicle in a private garage or upon a man’s own premises which was ready to go out for hire but which did not solicit business, unless to the words “ plying for hire ” were added such words as “or hired at any stable, garage or elsewhere.”

But in each of the sections of the ordinances with respect to hacks, cabs and taxicabs, the words “ plying for hire ” or “ soliciting for hire ” have been limited to such plying or solicitation upon the streets or public thoroughfares. So' the definition in section 8b, subdivision 1, defining a public hack, contains the clause “ for which public patronage is solicited upon the streets.” Section 83 provides “ No public hack shall ply for hire upon the streets of the city without first obtaining a license from the commissioner;” and section 109, entitled “Violations” contains the phrase “ solicits for hire passengers upon the streets.”

In conformity with the views expressed herein, the judgment in each Of the cases under consideration must be reversed and the fines remitted.

Judgment reversed.