People v. Untermyer

The appellant was convicted of a violation of section 454 of chapter 12 of the Code of Ordinances of the city of New York, which provides as follows: “ Speed of Vehicles. The following rates of speed through the streets of the city shall not be exceeded, that is: Eight miles an hour by bicycles, tricycles, velocipedes and motor vehicles, however propelled, or by pas

The evidence is undisputed that the defendant operated an automobile along Broadway between One Hundred and. Twenty-fourth and One Hundred and Twenty-first streets at a greater rate of speed that eight miles an hour, to wit, thirty miles per hour.

The question submitted is whether the ordinance quoted is in force. This requires consideration of the provisions of the Highway Law in connection with the ordinances. In People ex rel. Hainer v. Keeper of Prison ( 121 App. Div. 645 ; affd., 190 N. Y. 315 ), this court had under consideration the Motor Vehicle Law (Laws of 1904, chap. 538), in connection with the city ordinances adopted on Hovember 18, 1906. In that case the relator had been arrested and held for trial at the Court of Special Sessions for a violation of subdivision 1 of section 3 of chapter 538 of the Laws of 1904. He sued out a writ of habeas corpus upon the ground that the said law did not apply to the city in view of the ordinances adopted. We held that the ordinance was ineffective .and that ‘the law did apply because the act (§ 4, subd. 3) permitted local authorities to thereafter pass ordinances, rules and regulations in regard to the speed of motor vehicles on public highways under three express conditions: First, that such ordinances should fix the same speed limitations for all other vehicles; third, that such ordinances should fix the penalties for violation thereof similar to and no greater than those fixed by such local authorities for violations of the speed regulations for such other vehicles than motor vehicles, and, secondly, “ on further condition that such city or village shall also have placed conspicuously on each main public highway where the city or village lines crosses the same, * * * signs of sufficient size to be' easily readable

Thereafter the legislature amended and renumbered the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), by chapter 374 of the Laws of 1910, article 11 thereof being entitled “ Motor Vehicles.” Section 280 provides: “Except as herein otherwise expressly provided, this article shall be exclusively controlling: 1. Upon the registration, numbering and regulation of motor vehicles, and the licensing and the regulation of chauffeurs; 2. On their use of the public highways, and 3. On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highway; 4. On the punishment for the violation of any of the provisions of this article.”

Section 287: “ Speed permitted. Every person operating a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.”

Section 288: “ Local ordinances prohibited. Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner or chauffeur to whom this article is applicable, any tax * * * or in any other way respect

■Section 290-: “Punishment for violation; procedure. * * * 2. The violation of any of the provisions of section two hundred and eighty-seven of this article (that is, the general speed provision, that a fate of speed in excess of thirty miles shall be presumptive evidence of driving at a rate of speed which is not careful and prudent) shall constitute a misdemeanor punishable by a fine not exceeding one hundred dollars." * * * 6. Upon a third or subsequent conviction of a chauffeur for a violation of the provisions of section two hundred and eighty-seven, or an ordinance, rule or regulation regulating speed of motor vehicles under section two hundred and eighty-eight, the Secretary of State, upon the recommendation of the trial court, shall forthwith revoke the license of the person so convicted and no new license shall be issued to such person for at least six months after the date of such conviction nor thereafter except in the discretion of the said Secretary of State.”

The point raised here is that-as it is not shown that signs were posted, in fact it is conceded they were not, the local ordinance does not apply, the magistrate had no jurisdiction, and the speed limit is, therefore, covered by section 287, that is, roughly speaking, thirty miles an hour. The answer is that the act expressly provides that nothing in this article shall impair the validity or effect of any ordinances, etc., adopted and prescribed pursuant to law in any city of the first class.

The appellant claims that, notwithstanding said provision, the grammatical construction of the section compels the condition in regard to the posting of signs, still required in other cities and incorporated villages, to be also applied to cities of the first class. I do not think so. The statute is awkwardly phrased, but I think it clear that special provision has been made for cities of the first class permitting them to pass such ordinances as they please, and that there is no condition in regard to posting signs. If this is not so there is no speed limit

It follows that the judgment appealed from should be affirmed.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment affirmed.