Mayor v. Wood — 25 N.Y. St. Rep. 907

Majority

p. 907

The Mayor, etc., of the City of New York, App’lt, v. Walter Wood et al., Resp’ts.

(New York Common Pleas, General Term,

Filed July 22, 1889.)

Headnote

1, Municipal cobfobations—Obdinances—Summons—Sufficiency of— Code Civ. Pbo,, § 1897.

In an action for the violation of an ordinance, Held, that where the ordinance was not only mentioned, but its substance indorsed upon the summons, there was a compliance with Code Civil Procedure, section 1897.

2. Same—Repeal of obdinance—Rev. Obd. 1880, chap. 6, abt. 4— Obdinance adopted Mabch 30, 1886.

Revised Ordinances of 1880, chapter 6, article 4, of Hew York city is not repealed by the ordinance adopted March 30, 1886. Both ordinances, in words of equivalent import, forbid the placing of a sign more than twelve inches in front of the house line, and the latter ordinance only-gives permission to do what the former merely refrained from visiting with a penalty.

Appeal from eleventh district court.

W. A. Boyd, for app’lt; Walter Wood, in person, for resp’t.

The summons was properly endorsed. The ordinance violated is article 4 of chapter 6 of the revised ordinances of 1880, and not only is it particulary mentioned, but its substance is endorsed upon the summons.

p. 908

The defendants thus had the means of ascertaining from the summons what ordinances they were charged with having violated, and of learning the provisions of the ordinance from the endorsement upon the summons. A fuller compliance with section 1897 of the Code, as that section was construed by this court in The Mayor v. Eisler (2 Civ. Pro. Rep., 125) could not be desired.

It is argued that the ordinance referred to was repealed by the ordinance adopted on March 30, 1886. It is not expressly repealed, for it is not mentioned, and the only question is, was it repealed by implication? We ask first: Is the ordinance of 1880 inconsistent with the ordinance of 1886? To that we think that only one answer can be given: Ho. The two ordinances fit perfectly, and together form a harmonious whole.

The ordinance of 1886 provides that “signs may be placed on the fronts of buildings, and shall be securely fastened, and except in the case of swinging signs, shall ' not project more than one foot from the house wall.”

The ordinance of 1880 provides that: “ Ho person shall place, hang or suspend any greater distance than twelve inches in front of and from the wall of any house or store . or other building, any sign, show-bill, or show-board, under ,the penalty of ten dollars, for each offense.”

It is a rule of construction that permission to do a thing shall not be implied from the use of negative words that forbid the doing of a different thing; and, therefore, it may well be said that permission to place a sign in front of the house, less than a foot in advance of the front wall, is not to be implied from the ordinance that inhibited the placing of a sign more than a foot in advance of the wall; but yet, the fact is obvious that no punishment is prescribed where the sign does not project more than twelve inches. It may be assured that the common council, when it passed the ordinance of 1880, intended to tolerate signs that did not stand more than a foot in front of the house line, but a bare toleration was not all that the citizen desired, and for that reason the ordinance of 1886 was adopted, which gave, in clear and apt words, permission to do that which the ordinance of 1880 merely refrained from visiting with a penalty.

But where the sign is placed more than a foot in advance of the front of the house, it is no more protected by the ordinance of 1886 than by the ordinance of 1880. What inconsistency is there then in punishing under the ordinance of 1880 an act that is unwarranted by the ordinance of 1886? Both ordinances, in words of equivalent import, forbid the placing of a sign more than twelve inches in front of the house-line.- The ordinance of 1880 provides a penalty in such a case. Why was it necessary to provide another penalty, or to provide the same penalty a second time ?

p. 909

Instead of being inconsistent with the ordinance of 1886, the ordinance of 1880 harmonizes with it perfectly, and is essential to the completeness of the system devised for the exhibition of signs; a system that encourages signs that do not project more than a foot, but forbids a sign that projects a greater distance.

We think the ordinance of 1880 is still in full force, and are of opinion that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.