29. To regulate swimming and bathing in the waters of, or bounding the city, and to establish and maintain in the city such public baths and public comfort stations as they may deem necessary, and to establish suitable rules and regulations for the management of the same. 30. To prohibit and suppress all gaming-houses and places for gaming in the said city. 31. To enlarge or extend from time to time the limits of the fire districts of the city, and to establish additional fire districts, and from time to time to extend the same. L. 1882, ch. 410, § 86. SUBD. 2. (a) An ordinance requiring coal to be weighed by city weighers, under a penalty, is not void as in restraint of trade, nor unreasonable. Stokes v. The Corporation, 14 Wend. 87. See People ex rel. Gould v. City of Rochester, 45 Hun, 102. As to licensed weighers of coal in New York city, see L. 1888, ch. 539, p. 892. SUBD. 3. TRAFFIC. (b) The city cannot deprive itself of its legislative power over the streets and prevent its regulating their use; any attempt to do so by contract, either express or implied, would not only be revocable at pleasure, but void. N. Y. & Harlem R. R. Co. v. The Mayor, 1 Hilt. 562. See N. Y. & New Haven R. R. Co. v. The Mayor, 4 Blatchf. 193. (c) The right of a railroad corporation created to operate a street railroad in the city of New York, is to use the streets for the construction and operation of its road; beyond that the company is subject to the power of the city to declare by ordinance the manner in which the street shall be used by the animals and cars of the company. Dry Dock, E. B. & B. R. R. Co. v. The Mayor, 47 Hun, 221. As to the power to regulate the speed of trains, see City of Buffalo v. N. Y., Lake Erie, etc., R. R. Co., 54 N. Y. State Rep. 156; s. c., 23 N. Y. Supp. 309. ENCROACHMENTS. (d) The city has no power to authorize any encroachment or obstruction upon any street or sidewalk except for the temporary purpose indicated in this subdivision. Cohen v. The Mayor, 113 N. Y. 532; s. c., 23 N. Y. State Rep. 509; rev'g 43 Hun, 345; People ex rel. C'Reilly v. The Mavor. 59 How. Pr. 277; Ely v. Campbell, Id. 333; People ex rel. Bentley v. The Mayor, 18 Abb. N. C. 123; Lavery v. Hannigan, 52 N. Y. Super. Ct. (J. & S.) 463; People ex rel. Mullen v. Newton, 20 Abb. N. C. 387; St. John v. The Mayor, 3 Bosw. 483. See Callanan v. Gilman, 107 N. Y. 361; Rehberg v. The Mayor, 91 Id. 143. (e) The city has the power to permit the construction of cellarways extending into the street, and a cellarway so constructed, in conformity with ordinances regulating such use of the street, is not an unlawful structure or nuisance. Jorgensen v. Squires, 144 N. Y, 280; s. c., 63 N. Y. State Rep. 686; 1 N. Y. Ann. Cases, 132. (f) The owner of a building abutting on a street, may use the sidewalk in front of his premises for the usual purposes of his business, when such use occasions only temporary obstruction. Id. (g) But an adjacent occupant of a building upon the street has no right to appropriate the sidewalk for the purpose of his business, thereby unreasonably obstructing and preventing the use of it by persons lawfully passing along the street. Richardson, etc. Co. v. Barstow Stove Co., 36 N. Y. State Rep. 983; affi'g 26 Abb. N. C. 150; Jorgensen v. Squires, above. (h) Nor can the city authorize or permit an unreasonable use of streets for business purposes. O'Reilly v. The Mayor, 59 How. Pr. 277; Lavery v. Hannigan, 52 N. Y. Super. Ct. (J. & S.), 463; Richardson, etc. Co. v. Barstow Stove Co., supra. A (i) Thus, the city has no power to grant a permit for the placing of a show case beyond the stoop line. show case so placed is an unlawful obstruction and its removal will be compelled by mandamus. People ex rel. Bentley v. The Mayor, 18 Abb. (N. C.) 123. (j) When the city, in direct viola tion of a statute, without the pretense of authority, assumes to grant to a private individual the right to obstruct the public highway while in the transaction of his private business, and for such privilege takes compensation, it must be regarded as itself maintaining a nuisance so long as the obstruction is continued by reason of or under such license, and it must be liable for all damages which may naturally result to a third person by reason of such obstruction. Cohen v. The Mayor, 113 N. Y. 532. See note " obstruction of sidewalks for business purposes," 18 Abb. N. C. 129. (k) The city has no power to appropriate by resolution any portion of a street to private use to the exclusion of the public. Metropolitan Exhibition Co. v. Newton, 4 Ñ. Y. Supp. 593; s. c., 21 N. Y. State Rep. 73. (1) The city has no power to prohibit the bringing of an action for a penalty for the unlawful obstruction of a street until ten days after notice of removal has been given, since such an ordinance in effect permits an obstruction of the streets for the period stated. Mayor v. Henft, 2 How. Pr. (N. S.) 149. SUBD. 7. AWNINGS. (m) The power given to authorize the erection and maintenance of awnings is not taken away by the general provisions of subdivision 3 prohibiting the city from permitting encroachments upon or obstructions in the streets. So Held. restraining the removal by the city of an awning erected in conformity with ordinances upon that subject. Hoey v. Gilroy, 129 N. Y. 132; s. c., 41 N. Y. State Rep. 181: affi'g 37 N. Y. State Rep. 754; s. c., 14 N. Y. Supp. 159. POLES. (n) The legislature has no power, so far as the rights of abutting owners are involved, to authorize the use of the streets of a city for the erection of poles to conduct telegraph and telephone wires. The erection of such poles is not an ordinary or legitimate use of the highway, but an additional burden upon the owners of the fee extending to the center of the street, and hence is a taking of private property within the constitutional provision. Metropolitan Tel. & Tel. Co. v. Colwell Lead Co., 50 Super. Ct. 488; S. C., 67 How. Pr. 365; Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C. 440; Eels v. Amer. Telephone, etc. Co., 65 Hun, 519; s. c., 48 N. Y. State Rep. 403; 20 N. Y. Supp. 600; Blashfield v. Empire State Tel. & Tel. Co., 18 N. Y. Supp. 250; Johnson v. Electric Co., 7 N. Y. Supp. 716. (0) But a municipality has full power over the matter of lighting streets, and may authorize the erection of poles to be used for that purpose. Johnson v. Electric Co., supra; Tuttle v. Brush, 50 N. Y. Super. Ct. (J. & S.) 464; Metropolitan Tel. & Tel. Co. v. Colwell Lead Co., Id. 488. For the construction of particular ordinances regulating the use of signs, see The Mayor v. Wood, 6 N. Y. Supp. 657. (0) An ordinance imposing a license upon telegraph poles is valid as an exercise of the police power of the city, and does not conflict with the interstate commerce law. City of Phila. v. Postal Tel. Co., 67 Hun, 21; S. C., 21 N. Y. Supp. 556. SUBD. 8. (p) The city has plenary power over the making, repairing, improving and paving, etc. of streets. Moore v. The Mayor, 73 N. Y. 238. See Lahr v. Railroad Co., 104 N. Y. 292. SUBD. 9. See City of Rochester v. Close, 35 Hun, 208. SUBD. 11. (q) A city has no power to authorize a discharge of fireworks, upon its public streets, which, under the attendant circumstances, operates as a nuisance, and will be liable for injuries to a third person resulting therefrom. Spier v. City of Brooklyn, 139 N. Y. 6; s. c., 54 N. Y. State Rep. 416. SUBD. 13. See People ex rel. Dorr v. Thacher, 42 Hun. 349. SUBD. 14. (q1) By 1 L. 1896, ch. 823, p. 755, the mayor has power to grant temporary permits under certain conditions in regard to consent by abutting owners for the erection of flags, banners, etc., over the streets for public celebrations and political demonstrations, etc. SUBD. 19. (r) A municipality has the power to pass an ordinance restricting the sale of meat to a particular place, i. e. to markets and the streets adjoining. Such an ordinance is not in restraint of trade. The Village of Buffalo v. Webster, 10 Wend. 100. SUBD. 20. (s) The classification of keepers of " 'intelligence offices" in this subdivision does not supersede or repeal L. 1822, ch. 15, on the same subject of ordinances for licensing intelligence offices. The Mayor v. Buel, 12 Daly, 494. As to intelligence offices in New York city generally, see L. 1888, ch. 410, p. 681, as amended by L. 1891, ch. 330. As to general act concerning pawnbrokers, see L. 1883, ch. 339, p. 508, as amended by L. 1890, ch. 240. (t) As statutes which authorize municipal corporations to regulate hawking and peddling are in restriction of the common law and of the general right of persons to pursue a legitimate and innocent occupation, and to deal rightfully and usefully with their property, they should receive a strict construction, and in every instance where one is sought to be charged with a penalty for the violation of a municipal ordinance enacted in pursuance thereof, his occupation must be shown to be clearly within those occupations which are aimed at. Village of Stamford v. Fisher, 140 N. Y. 187; s. c., 55 N. Y. State Rep. 405. (u) An ordinance restricting the Id.; foregoing enumeration of powers not restrictive; general power. 50. The foregoing or other enumeration of powers in this act shall not be held to limit the legislative power of the municipal assembly which, in addition thereto, may exercise all of the powers vested in The City of New York by this act, or otherwise, by proper ordinances, rules, regulations and by-laws not inconsistent with the provisions of this act, or with the constitution or laws of the United States or of this state; and, subject to such limitations, may from time to time ordain and pass all such ordinances, rules, regulations and by-laws as to the said municipal assembly may seem meet for the good rule and government of the city, and to carry out the purposes and provisions of this act or of other laws relating to the said city, and may provide for the enforcement of the same by such fines, penalties, forfeitures and imprisonment as may by ordinance or by-law be prescribed. L. 1882, ch. 410, § 85. (a) To recover a penalty for violation of an ordinance, it must appear that the ordinance sought to be enforced is within the legislative authority of the city, and that it is a regulation of police and internal government and not a mere imposition of a duty for purposes of revenue. The Mayor v. Second Ave. R R. Co., 32 N. Y. 261; affi'g 34 Barb. 41; S. C., 12 Abb. Pr. 364; The Mayor v. Third Ave. R. R. Co., 33 N. Y. 42. (b) As to the power of the municipality to restrain as an act of police power a railroad company by ordinance from throwing snow from its track upon the street along its line, see Broadway & Seventh Ave RR. Co. v. The Mayor, 16 N. Y. State Rep. 950; s. c., 1 N. Y. Supp. 646. (c) As to the power to restrict railroad company from sprinkling sand upon its tracks, see Dry Dock, E. B'way R. R. Co. v. The Same, 47 Hun, 221. (d) An ordinance requiring hoistways in stores and buildings to be inclosed by a railing and closed by trap-doors upon completion of business each day, is a reasonable police regulation and within the powers of the municipality. The Mayor v. Williams, 15 N. Y. 502 affi'g 4 E. D. Smith, 516. (e) Where a party erected for another an awning across a sidewalk in violation of a city ordinance, held, that he could not recover on the illegal contract or on a quantum me uit. Brinkman v. Eisler, 7 N. Y. Supp. 193. (f) Where a corporation is authorized to enforce its ordinances by fine or in any other prescribed manner, it is by implication precluded from adopting any other method of punishing disobedience to them. See cases collated In re O'Keefe, 19 N. Y. Supp. at p. 677. See the Mayor v. Ryan, 2 E D. Smith, 368; Underwood v. Green, 8 Robt. 86; Mayor v. Third Ave. R. R. Co., 16 N. Y. State Rep. 122; s.c ., 1 N. Y. Supp. 397; In re O'Keefe, 19 N. Y. Supp. 676; Armitage v. Fisher, 24 N. Y. Supp. 650. Id.; licenses to second-hand dealers; penalty for violating ordinance. 851. Every dealer in second-hand articles and scalper in coal freights shall pay for a license a sum to be determined by the municipal assembly, not exceeding five hundred dollars. Dealers in second-hand articles and scalpers in coal freights may be required to give security to the city with one or more sufficient surety or sureties in a sum not exceeding ten thousand dollars conditioned for the observance of the ordinances of the municipal assembly. No greater penalty than one hundred dollars shall be imposed by an ordinance as the penalty of the violation of any ordinance by any dealer in second-hand articles or scalper in coal freights. L. 1882, ch. 410, § 89; L. 1889, ch. 442. Id.; designating common jails. 52. The municipal assembly may, by ordinance from time to time, by a vote of two-thirds of the members of each house, and the approval of the mayor, designate any building or buildings within the city to be the common jails of said city for all the purposes for which common jails may by law be used, and such building or buildings so designated, shall be such common jails until changed by a like ordinance by the municipal assembly. L. 1882, ch. 410, § 90; L. 1888, ch. 412. Id.; assignment of places for holding courts of general and special sessions and magistrates' or police courts. 53. The municipal assembly, by resolution or ordinance, by a vote of not less than two-thirds of all the members elected to each house, may assign such place in said city as may to it seem. most conducive to the public convenience, for the holding of the courts of general and special sessions, and upon the application. of the board of city magistrates, may designate additional places for the holding of magistrates' or police courts and jail delivery to be held in and for the city; notice of any change of the places of holding such courts shall, before the same takes effect, be published in the City Record and the corporation newspapers, for a period of not less than four weeks. Said publication shall be made under the direction of the city clerk. L. 1882, ch. 410, § 91; L. 1888, ch. 412. See People ex rel. McSpedon v. Stout, 23 Barb. 349. Id.; assignment of places for holding municipal courts. 54. The municipal assembly may assign the places where the several municipal courts shall be held, within their respective districts, except as otherwise provided by law. L. 1882, ch. 410, § 92. Id.; security to be required from certain officers. 55. It shall be the duty of the municipal assembly where no provision has been made by law in respect thereto, to provide for the accountability of all officers and other persons, save as herein otherwise provided, to whom the receipt or expenditure of the funds of the city shall be entrusted, by requiring from them sufficient security for the performance of their duties of trust, which security shall be annually renewed; but the security first taken shall remain in force until new security shall be given. L. 1882, ch. 410, § 95. Id.; prescribed salaries of officers. 56. The salaries of all officers whose offices may be created by the municipal assembly for the purpose of giving effect to the provisions of this act, shall, subject to the other provisions of this act, be prescribed by ordinance or resolution. The municipal assembly shall have power, upon the recommendation of the board of estimate and apportionment, to fix the salary of any officer or person whose compensation is paid out of the city treasury, irrespective of the amount fixed by this act, except that no change shall be made in the salary of an elected officer or head of a department during the term for which he was elected or appointed. L. 1882, ch. 410, § 97. Id.; publication of code of ordinances. 57. The ordinances of the municipal assembly shall, as far as practicable, be reduced to a code and published. L. 1882, ch. 410, § 98. |