People v. Wilson — 10 N.Y. Crim. 79

Majority

p. 79

Supreme Court-General Term-Third Department.

November 30, 1891.

PEOPLE v. ORSON M. WILSON.

( 41 St. Rep. 765 .)

Headnote

1. Municipal corporations—Streets—Ordinances.'

The specific grant of powers of making, grading, repairing and caring for streets, vests in the grantee power to make such ordinances as shall he reasonable for their protection.

2. Same—Proof.

Where the city clerk testifies that he knew the wide tire ordinance and produces a copy thereof, with certificates attached, certifying to its passage, record, correctness and due publication, which are received in evidence without objection, it was held to> be sufficient proof of the ordinance and its record.

8. Same—Violation.

Proof that the defendant was seen with his load on the avenue in question and on the same day was seen with his load on another street, is sufficient to prove that he was drawing or transporting the load over said avenue.

4. Same—Evidence—Opinion.

The estimate of a witness, who has been in the business of handling blue stone for twenty years, is competent evidence of its weight.

Appeal from a judgment of the Ulster county sessions, affirming judgment of conviction and sentence of the defendant by the recorder’s court of the city of Kingston.

William Lounsbery, for appellant.

G. D. B. Hasbrouck, for respondents.

The defendant was convicted before tiie recorder of the city of Kingston of the violation of an ordinance of the city prohibiting any person from drawing or transporting a load or burden weighing from two and one-half to five tons over any macadamized, paved, or top dressed street of the city

p. 80

in any vehicle having a tire less than four inches wide on its ¡wheels.

• The defendant urges that, the charter of the city does not authorize the making of such an ordinance. The power is not expressly conferred, but the charter, chap. 150, Laws 1872, § 91, provides that “The common council shall have the powers and discharge all the duties .of commissioners of highways in said city,” and are vested with power “To lay out, make and open, streets” * * * “and cause the same to be repaired,” § 93. “To cause any street * * * to be graded, paved or repaired,” § 98, and to prescribe “of what materials.” Section 100. “It shall be the duty of the superintendent of streets * * * under and subject to the control of the common council, to act as overseer of highways, and take general supervision and charge of all highways and streets.” Section 51. “And for the purpose® * * * of executing powers conferred upon the common council or upon the city by this act or otherwise, the said common council shall have full power to make, establish * * * ordinances.” Section 33, subd. 51.

The specific grant of powers for the making, grading and repairing streets, and for their care and superintendence, coupled with the power to make such ordinances for the purpose of executing such powers, vests in the common council the power to make such ordinances as shall be reasonable for the purpose. It is reasonable to protect paved streets from being crushed and ruined by loads of enormous weight borne upon vehicles with wheel® of narrow tires, which cut through the pavement, when a broader tire will bear the load without causing such injury. It is reasonable 'that the carrier of heavy loads should so exercise his own rights as not injuriously to affect those of others. Such an ordinance was upheld in People v. James, 16 Hun, 426 , and we concur in the views there expressed upon the subject.

The charter requires that an ordinance “shall be published at least twice in the two newspapers published in said city, designated for such purpose by the common council, before it shall take effect.” The city clerk testified a® follows: “Am city,

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clerk, and was so during the year 1890; it is my duty to keep th'e minutes of the common council; know the wide tire ordinance (a copy produced and recognized, and put in evidence, marked 'A.)” Exhibit A consists of a copy of the ordinance with "such certificates appended thereto, made by the city clerk, certifying to its passage, record, correctness, and due publication, as the charter requires to be entered of record upon the minutes or records of the common council, which “record or a copy thereof, certified by the clerk of said city, shall he presumptive evidence in all courts and places * * * of the due passage of such ordinance, * * * and of its having been duly published.” Section 33, subd. 51. The criticism that the certificate presented was not a certificate of a copy of the record, but was the certificate which should be entered of record, and that the whole record itself or a certified copy of it should be produced, would, undoubtedly, be valid, if the ordinance had not been proved by common law evidence. The city clerk as a witness produced what we may assume was a transcript of the record, and it was read in evidence without any objection or question.

The record contained the statutory certificate of the due publication of the ordinance. The statute makes the record itself proof of the passage- and publication of the ordinance. The record may be proved like any other fact by common law evidence. Secondary evidence is admissible at common law, unless objection is made to that mode of proof. Bone was made here, and hence the. record was completely proved by producing and reading a copy of it. , •. i ,

The weight of the load of blue stone rubbish was shown by the testimony of a witness who testified that he bad handled blue stone and been in the blue stone business for twenty years, that he saw the load in question; he gave an estimate of its dimensions, and testified that in his judgment its weight was about four tons. The objection was taken that the opinion of the witness was not competent or proper. We do not thinlr the objection tenable. Under the circumstances it seems to have been the best evidence obtainable. Clearly the witness was

p. 82

qualified to make an approximate estimate; that is to say, he knew something about the weight of that load, and knew more ¡than the inexperienced observer. There was no other way im ■which he could express more accurately what he knew respecting its weight, than by giving his opinion or estimate of it. It was competent for him to testify to what he knew and to do so in the most accurate form in which he could express it. Quantities, values, times, distances, and other measurable subjeets, must often be measured in this way because no better exists. Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 243 ; 14 St. Rep. 783 ; Harpending v. Shoemaker, 37 Barb. 270 ; Smith v. Gugerty, 4 id. 614; Townsend v. Brundage, 6 Thomp. & Cook, 527 ; McDonald v. Barton, 1 id. 12.

\ A witness testified that he saw defendant “on” Union avenue with his team of horses and wagon, having on the load of blue stone rubbish; and another witness testified that he saw him on the same day with the load on another street. This testimony is■criticised as not showing that the defendant was “transporting, carrying or drawing the load over” Union avenue. To conclude from this testimony that the defendant transported the load ■over the street on which he was seen with it is a reasonable and not a violent inference. We do not think the other objections, require comment.

The judgment should be affirmed.

LEARNED, P. J., and MAYHAM, J., concur.

Cases cited

Collins v. New York Central & Hudson River Railroad 109 N. Y. 243 N.Y. 1888-04-10 p. 82
Harpending v. Shoemaker 37 Barb. 270 N.Y. Gen. Term 1862-09-01 p. 82