In re Fiegle — 72 N.Y.S. 438

Majority

p. 438

(36 Misc. Rep. 27.)

In re FIEGLE.

(Supreme Court, Special Term, Kings County.

September, 1901.)

Headnote

Municipal Corporations—Ordinance—Obstruction op Street.

Laws 1897, c. 378, § 49, subd. 3, prohibits the municipal assembly of the city of New York from placing any obstruction on any street or sidewalk except during the erection or repairing of a building ón a lot opposite the same. Held, that an ordinance allowing licensed vendors to stand with their wagons and sell their wares on both sides of a street in Brooklyn every day except Sunday, until midnight, is invalid.

Application by George Fiegle for a writ of mandamus against Bernard J. York, deputy police commissioner for the borough of Brooklyn, city of New York, to compel the removal of an obstruction of the street.

Writ granted.

Donald F. Ayres, for the motion.

Luke D. Stapleton, opposed.

On September 5th, 1899, the municipal assembly passed an ordinance that licensed vendors and peddlers be permitted to stand with their wagons and display and sell their wares on both sides of Siegel street in the road or carriageway between Graham avenue and Broadway in Brooklyn borough every day excepting Sunday until midnight. The mayor approved such ordinance, and the said street has been so used ever since.

It is too well known to need the citation of authorities that there is no power in the municipal assembly, or in the city government in all its departments combined, to appropriate a public street for such a use. This depends on general principles of law which are familiar to lawyers and students of government. But in addition the charter of the city contains an express prohibition against the municipal assembly passing any ordinance authorizing “the placing or con

p. 439

tinuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same.” Laws 1897, c. 37s. § 49. subd. 3.

The ordinance in question is void, and. it is the duty of the respondent to clear the street of the obstructions.

Let the writ issue.