Colmes v. Fisher — 264 N.Y. 65

Majority

p. 65

In the Matter of Max Colmes et al., Appellants, against Edwin H. Fisher, as Director of Licenses of the City of Buffalo, et al., Respondents.

(Argued February 27, 1934;

decided March 6, 1934.)

p. 66

J ames C. Sweeney for appellants.

George L. Grobe, Corporation Counsel (Hyman Sapowitch of counsel), for Edwin H. Fisher, as Director of Licenses of the City of Buffalo, respondent.

Adrian Block and J. Clement Johnston for Retail Merchants Association et ah, respondnets.

Appellants were granted licenses as ■public auctioneers within the city of Buffalo. Thereafter a proceeding was duly instituted before the Director of Licenses upon due notice in accordance with the provisions of the city charter to revoke such licenses. A hearing was had and as a result an order was made revoking such licenses. Chapter XXIV, section 5, of the’ ordinances of the city reads in part: “ Section 5. Acts prohibited. No auctioneer shall: 1. Make any false representations as to the character, quality, condition, value or ownership of any property offered for sale, or falsely represent that such property is in whole or in part bankrupt or insolvent stock or damaged goods or goods saved from fire.”

Upon the hearing testimony was received which tended to establish that the appellants had violated the provisions of section 5 above quoted, and thereafter the Director of Licenses made an order revoking the licenses. The testimony was sufficient if the Director believed it to justify the granting of the order. In any event a clear question of fact was presented. The Appellate Division has confirmed the order, and we believe it was justified in so doing by the evidence contained in the record.

p. 67

It- is urged that section 6 is unconstitutional and void. It is not contended that subdivision 1 of section 5 is void. If section 6 should be held to be void it would not require a reversal in this case. We do not, therefore, deem it necessary to pass upon the validity of section 6.

The order should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not sitting.

Order affirmed.