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among the primary purposes of municipal government, and all reasonable regulations in aid of such objects within the police power of the state may be delegated to the municipality.
"The board aldermen shall have power to make, amen and repeal ordi. nances, rules, regulations and by-laws not inconsistent with this act or with the Constitution and laws of the United States or of this state for the following purposes:
(6) In relation to places of public amusement." Greater New York Charter (Laws 1897, p. 18, c. 378) $ 49.
"Subject to the Constitution and laws of the state, the board of aldermen shall have power to provide for the licensing and otherwise regulating the business of
common shows." Greater New York Charter, $ 51. It may be noted that the board of aldermen is not as a body given power to issue common show licenses. It is only authorized to provide for the licensing and regulation of "common shows." The ordinances under which these licenses were issued in part provide: “The following businesses must be duly licensed as herein provided, namely, common shows.
All licenses shall be granted by authority of the mayor and issued by the bureau of licenses for a term of one year from the date thereof, unless sooner suspended or revoked by the mayor,
The mayor shall have power to suspend or revoke any license or permit issued under the provisions of this ordinance."
The authority to grant licenses conferred on the mayor by the board of aldermen was a proper delegation of power. People ex rel. Larrabee v. Mulholland, 19 Hun, 548, affirmed 82 N. Y. 324, 37 Am. Rep. 568. The right to grant or refuse a license implies the power to do so unconditionally. The municipal ordinances expressly give the mayor the power to revoke licenses. The proof submitted shows that there is no city ordinance providing for notice to licensees or for a hearing before the revocation of a license by the mayor or the bureau of licenses. There is no doubt whatever but that the mayor has authority to revoke or suspend "common show” licenses. A license is only a permit to do a particular thing, and it is not property in any legal sense. It is a mere privilege granted by the municipal officer empowered to issue it, and is always revocable; the correlative power to revoke a license being a necessary consequence of the power to grant it. The revocation of a license is an administrative act, and may be effected without notice or an opportunity to be heard. People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894.
The power vested in the mayor of the city of New York to grant licenses for “common shows” is discretionary, and not mandatory. The power of the mayor to issue the licenses cannot be questioned. His right to revoke the licenses issued by his authority is undoubted. The prerequisite of notice to revoke the licenses and of a hearing is unnecessary under the decisions of the court. The facts shown on this application in the three several cases and affecting each of the three separate places where the three several plaintiffs operated moving picture shows satisfactorily establish that the mayor of the city of New York did not act unreasonably or arbitrarily. He acted within the law and in the interest of the public safety and welfare in revoking the licenses, for proper cause, and on adequate information and proof. Peo
Wurster, 14 App. Div. 556, 43 N. Y. Supp. 1088; People ex rel. Dorr v. Thacher, 42 Hun, 319; People ex rel. Worth v. Grant, 58 Hun, 455, 12 N. Y. Supp. 879.
The cases of City of Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443, and Hinman v. Clarke, 121 App. Div. 105, 105 N. Y. Supp. 725, affirmed 193 N. Y. 640, 86 N. E. 1125, cited and relied upon by the plaintiffs, are inapplicable. The licensees urge that if licenses are denied them they will be unlawfully deprived of property and the good will of business established under licenses. The answer is that a license is not a contract or property, but merely a temporary permit, issued in the exercise of the police powers, to do that which otherwise would be prohibited. A somewhat similar question was raised in People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894. Judge Haight, writing for the court, said:
“But the good will of the business so established must not be confounded with the permit granted to bim to engage in that business. He was never licensed to sell impure and adulterated milk, and after he had obtained his permits to sell, and undertook the securing of customers, he knew that he was engaging in a business which must be conducted under the supervision of the board of health of the city, subject to the police powers of the state, and that such permits were subject to revocation. He knew that such per. mits contained no contract between the state or the board of health and himself giving him any vested right to continue the business, and that it would become the duty of the board to revoke his license in case he violated the statute or the conditions under which it was granted.
The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud.”
The motion for a temporary injunction in each of the three cases is denied.
(62 Misc. Rep. 419.)
KOSTERS V. NATIONAL BANK OF AUBURN.
(Supreme Court, Equity Term, Cayuga County. February, 1909.)
1. STATUTES (8280*)-PLEADING PRIVATE STATUTE.
Code Civ. Proc. § 530, providing that, in pleading private statutes, the statute should be referred to by its chapter, year of passage, and title, without setting forth any of its contents, is applicable to a city charter, and in an action based on a liability under such charter a complaint failing to refer to it is subject to demurrer.
(Ed. Note.-For other cases, see Statutes, Cent. Dig. $ 379; Dec. Dig.
$ 280.*] 2. MUNICIPAL CORPORATIONS (8 808*)—ICE ON SIDEWALK-INJURY TO PEDES
TRIAN-LIABILITY OF ABUTTING OWNER.
A provision of a city charter that the owner of lands fronting on any highway shall keep the highway in repair and unobstructed, and shall be liable for any injury caused by failure so to do, does not render owner of real estate in the city which he does not occupy liable to dam
For other cases seo same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
ages at the suit of one claiming to have been injured by accumulation of ice and snow on the sidewalk of which the owner had no notice.
(Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. $
1686; Dec. Dig. $ 808.*] 3. MUNICIPAL CORPORATIONS (8 814*)—ICE ON SIDEWALK-INJURY TO PEDES
TRIAN-PARTIES TO ACTION.
Where ice and snow accumulates on a city sidewalk, the right of action to one injured thereby, if it exists, is against the city, and a complaint in an action against the abutting owner, in which the city is not joined, is demurrable for defect of parties.
(Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 814.*]
Action by Abby N. Kosters against the National Bank of Auburn. Demurrer to complaint sustained.
Olmsted, Van Bergen & Canfield, for plaintiff.
CLARK, J. This is an action brought by the plaintiff to recover damages she claims to have sustained by reason of falling on a sidewalk in the city of Auburn, where it is alleged there was an unusual accumulation of ice and snow which the defendant had negligently permitted to form and remain on the sidewalk in front of its premises. The defendant demurs to the complaint on two grounds: First, that there is a defect of parties defendant, in that the city of Auburn is not made a party defendant; second, that the complaint does not state facts sufficient to constitute a cause of action.
The complaint, among other things, alleges as follows: That the defendant is a foreign corporation, and was at the times mentioned in the complaint the owner and in possession of the premises known as 122' Genesee street in the city of Auburn, in front of which the defendant owned and maintained a sidewalk; "that, pursuant to the statute in such cases made and provided, which said statute is applicable to the city of Auburn, it became and was the duty of the defendant at all the times hereinafter mentioned, as the owner of lands and premises fronting and abutting upon said Genesee street, to make, maintain, and repair the sidewalk adjoining the said premises, and to keep such sidewalk and the gutter free and clear of and from snow and ice and other obstructions; that the defendant, as such owner and as occupant of said premises, is liable, pursuant to such statute, for any injury or damage caused by its failure to make, maintain, or repair such sidewalk, or to remove snow, ice, or obstructions therefrom, and to keep said sidewalk in a safe, secure, and passable condition for all persons passing upon and over the same;" that, on the 3d day of March, 1908, and for a long time prior thereto, the defendant had negligently permitted the sidewalk in front of its said premises to become dangerous and unsafe by reason of an accumulation of snow and ice upon said sidewalk, forming an obstruction thereon, which defendant neg. ligently permitted to remain; that on the 3d day of March, 1903, while she was walking upon said sidewalk, plaintiff slipped and fell, sustaining the injuries complained of, which were caused by the neg
ligence of the defendant, and without any negligence on the part of the plaintiff.
Section 99 of the charter of the city of Auburn, being chapter 185, p. 376, of the Laws of 1906, provided, among other things:
"That the owner or occupant of lands fronting or abutting on any street, highway, traveled road,
shall make, maintain and repair the sidewalk adjoining his lands, and shall keep such sidewalk and the gutter free and clear from snow, ice and all other obstructions and that such owner and occupant, and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk or to remove snow, ice or other obstructions therefrom," etc.
It will be observed that there is nothing in the statute to indicate to whom the owner should be liable in case of failure to observe the conditions of the charter. By the common law there is no obligation on the part of abutting property owners to keep sidewalks free from snow and ice; but the duty to do so, if any, arises out of obligations imposed by statute. City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; Mullins v. SiegelCooper Co., 183 N. Y. 129,75 N. E. 1112.
I think that this complaint is defective because it does not specifically refer to the act under which the action is brought. Chapter 185, p. 318, of the Laws of 1906, was an act to revise the charter of the city of Auburn. It is a local statute, and should have been pleaded specifically. Prentice v. Weston, 47 Hun, 121; Bretz v. Mayor, 35 How. Prac. 130. The statute should be referred to specifically by its chapter, year of passage, and title, or in some other manner with convenient certainty, without setting forth any of its contents. Code Civ. Proc. § 530. This was not done in this complaint. It simply says:
"That pursuant to the statute in such cases made and provided, which said statute is applicable to the city of Auburn, it became the duty," etc.
This being a local statute, the defendant had a right to have it pointed out with sufficient certainty in the complaint, so that it would not be necessary to search through the books to find the statute plaintiff was proceeding under. The allegation, in paragraph 4 of the complaint, with reference to this statute and the defendant's duty under it, was not a statement of any fact, but was a conclusion of law, and is insufficient to constitute a cause of action. Rothschild v. Rio Grande W. R. R. Co., 59 Hun, 454, 13 N. Y. Supp. 361; Hall v. Bartlett, 9 Barb. 297.
Moreover, notwithstanding section 99 of the charter of the city of Auburn (Laws 1906, p. 376, c. 185), the city of Auburn was not relieved from liability in cases of this character. It was primarily liable, and cannot relieve itself from such liability by section 99 of its charter. Cushen v. City of Auburn, 22 Wkly. Dig. 387; Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, 50 Am. Rep. 492; City of Rochester v. Campbell, 123 N. Y. 415, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760. The duty rested upon the city of Auburn to maintain its streets reasonably safe for the use of pedestrians. If the defendant, which was the owner, but not the occupant, of the property in question, had committed any affirmative act to cause an obstruc
tion on the sidewalk, or a defect in it, the situation would have been different; but here there is no claim that the defendant did anything excepting to "permit" snow and ice to remain on this sidewalk, no notice having been given the defendant that there was any snow thereon, so far as appears in the complaint. So, if this sidewalk became unsafe and was dangerous, it was wholly from natural causes; and, notwithstanding the provisions of the charter above quoted with reference to the duty and liability of an abutting owner, I do not think, in the first instance, that an action would lie exclusively against the owner for damages sustained by a pedestrian, and in favor of the injured party, for the statute does not in terms make the lot owner liable to the party injured, and it would be improper to read into the statute something which it does not contain, and it should not be made to extend beyond its express provisions. Fitzgerald v. Quann, 109 N. Y. 441, 17 N. E. 354; Dean v. Met. EI. R. R. Co., 119 N. Y. 540, 23 N. E. 1054; Tremblay v. Harmony Mills, 171 N. Y. 598, 64 N. E. 501.
I think, if the plaintiff has a cause of action, she should have looked in the first instance to the municipality, and that the demurrer should be sustained, both because it does not state facts sufficient to constitute a cause of action, and also because there is a defect of parties defendant in that the city of Auburn is not made a defendant. The demurrer is therefore sustained, and judgment directed on the demurrer in favor of the defendant, with costs.
Demurrer sustained, and judgment directed on demurrer in favor of defendant, with costs.
(Supreme Court, Special Term, Monroe County. March, 1909.) ENSANE PERSONS (8 41*)-COMPENSATION OF COMMITTEE.
On the settlement of the account of a committee of the personal property of an incompetent after his death, his widow, who constituted the committee, cannot be allowed compensation for personal care during the last three years of his life, while unable to take care of himself, as es. tra compensation as committee.
(Ed. Note.-For other cases, see Insane Persons, Cent. Dig. $ 63; Dec. Dig. 41.*)
In the matter of the accounting of Mary S. Goff, as committee of Burton H. Goff, incompetent. Motion confirmed, with report of referee. Claim of committee for compensation denied.
Nelson E. Spencer, for motion.
FOOTE, J. No objection is made to the accounts of the committee as found by the referee, and the referee's report in this respect should therefore be confirmed.
The committee asks to be allowed $15 per week for 144 weeks as additional compensation over and above her commissions, and her claim is based upon the extent and character of the personal services which