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Mayor of New York v. Bruns

51 N.Y.S. 1120 Court N.Y. App. Term Decision date 1898-06-06 English

Delivered by BEEKMAH, P. J.

Contents

Majority

p. 1120
MAYOR, ETC., OF CITY OF NEW YORK v. BRUNS.
(Supreme Court, Appellate Term.
June 6, 1898.)

Headnote

Sale op Coal—Delivery Ticket—Recovery op Penalty. '
In an action by a city to recover the penalty imposed by Laws 1897, c. 174, § 3, for failure to accompany the delivery of coal with a delivery ticket, as required thereby, the fact that the defendant did deliver full weight Is immaterial, and does not justify a dismissal of the complaint.
Appeal from Sixth district court.
Action by the mayor, aldermen, and commonalty of the city of Hew York against William D. Bruns. From a judgment dismissing the complaint, plaintiff appeals.
Reversed.
Argued before BEEKMAH, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
John Whalen, Corp. Counsel (Adrian T. Kiernan, of counsel), for appellant.
W. D. Bruns, in pro. per.

The undisputed evidence in the case demonstrated that the defendant had incurred the penalty prescribed by chapter 174 of the Laws of 1897 for a failure to accompany the delivery of a ton of coal with the delivery tickets which the statute (section 3) requires to be given in such a case. The justice dismissed the complaint, largely on the ground that the defendant had delivered full weight, and that the mischief which the statute was intended to prevent did not exist in this case. It is hardly necessary to say that the position thus taken was utterly untenable, and, if sustained, would operate as a repeal of the statute. The duty enjoined is to deliver the tickets with the coal, and the penalty imposed is not for a failure to deliver full weight, but for a neglect to furnish the tickets. The court has no power to suspend the operation of a statute in an individual case because, upon the facts there disclosed, it may seem to be unfair or inequitable to enforce it. The plaintiff was absolutely entitled to judgment for a sum not exceeding 150, to be determined by the justice; and it was therefore error to dismiss the complaint, for which the judgment must be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.