(City of Rochester v. Campbell, ante.) Public officers charged with a ministerial duty in this respect are themselves liable if they neglect to perform it. (Piercy v. Averill, 37 Hun, 361.) And keeping the public streets in repair has been held to be a ministerial act. (Urquhart v. Ogdensburgh, 91 N. Y. 67.) The duty to keep his sidewalk safe and passable devolves upon each abutting owner, even though the obstruction is placed there through no negligence of his own, provided it has been there a sufficient length of time to charge him with notice of its existence. (Wenzler v. McCotter, 22 Hun, 60.) It is the duty of a traveler, however, to avoid dangerous obstructions on a sidewalk. (Pomfrey v. Village of Saratoga Spa, 34 Hun, 607.)

Inflammable materials.

In an action brought to recover the prescribed penalty against one who had directed that a fire be made in a street of a village, contrary to an ordinance thereof. It was held that he was liable. Village of New Rochelle v. Clark, 65 Hun, 140; 47 N. Y. St. Rep., 406; 19 N. Y. Supp., 989.) An injunction will not be granted to enforce an ordinance passed in accordance with this statute. The penalty is the exclusive remedy. (Village of Brockport v. Johnston, 13 Abb. N. C., 468.)

Violating ordinance.

When a village ordinance only provides a penalty for its violation, it contemplates only a civil action to recover such penalty and does not authorize a criminal proceeding. The provision giving to police constables authority to arrest a person when in the act of violating a village ordinance does not give him a right to arrest upon a warrant issued long after the violation complained of. (Fuller v. Redding, 16 Misc. 634.) Term Decision.)

Information for violating village ordinance.

(Special

An information for violating a village ordinance which does not aver that the act was unlawfully and wilfully committed, is not sufficient to authorize the granting of a warrant. (Fuller v. Redding, 16 Misc. 634.)

Penalty, action for.

An action for a penalty is of a quasi criminal nature, and is, therefore, one of that class to which the rule applies that the defendant must be informed of the exact charge against him. (Village of Courtland v. Howard, 1 App. Rep. 131.)

Building contrary to ordinance.

If a person, under a permit illegally granted by city officers, constructs a building on his own land, he cannot by lapse of time acquire a vested

right to maintain the same, as he never had any right to vest. (City of Brooklyn v. Furey, 9 Misc. 193.)

Discriminating in building permits.

The board of trustees cannot discriminate in the matter of granting building permits to build in the fire limits of a village and thus allow one person to do an act which would be a crime or work a forfeiture if done by another person. (City of Brooklyn v. Furey, 9 Misc., 193.)

§ 90. Licensing occupations.

The board of trustees of a village may, by ordinance, prohibit the pursuit or exercise, without a license, of any of the follow ing trades or occupations within the village, to wit:

1. The running of public carriages, cabs, hacks, carts, drays, express wagons, or other vehicles for the transportation within the village, for hire, of persons or property, soliciting or running therefor, or for hotels; auctioneering, hawking and peddling, except the peddling of meats, fish, fruit and farm produce.

2. The doing of a retail business in the sale of goods of any description, from canal boats in the canals, or from the lands by the side of such canals and within the boundary lines thereof, within the limits of the village, except products of the farm and unmanufactured products of the forest.

3. Circuses, theatres, or other exhibitions or performances, the keeping of billiard saloons, bowling alleys, shooting galleries, and other similar places of amusement, for money or hire; or the giving of exhibitions, performances or entertainments in any place where liquor is sold or drunk under a liquor tax certificate.

4. The use of any public hall or opera house; but such place shall not be licensed unless it has suitable and safe means of ingress and egress in case of panic or fire.

If any such trade or occupation shall be so prohibited, the

board of trustees shall establish uniform fees for licenses therefor, and the president of the village shall issue a license specifying the fee to be paid therefor, to such persons as he shall deem fit and proper for such trade or occupation, but such license shall be refused for any of the occupations in the third subdivision above specified, which shall, in the judgment of the president, be likely to disturb the peace and order of the village, or be immoral or improper. Every such license shall be countersigned by the clerk of the vilage, who shall keep a record thereof and of the amount of the fee to be paid therefor; and upon presentation of such license to the treasurer of the village, so signed and countersigned, and the payment to the treasurer of such fee, the treasurer shall indorse thereon his receipt of the license fee. The license shall not take effect until the receipt of the treasurer shall have been endorsed thereon. Any applicant, who shall have been refused such license by the president, may apply to the board of trustees therefor at a meeting thereof; and the same may be granted or refused by the board. The president may suspend any such license until the next meeting of the board of trustees, and thereupon said license may be revoked or continued by the board.

[L. 1870, ch. 291, tit. III, § 3, subs. 14, 21, 22; R. S., 9th ed., 2277. L. 1883, ch. 465; R. S., 9th ed., 2601.

The trustees were given the power under the act of 1870 of regulating or preventing certain trades, or occupations without a specification of the manner of regulating.

The act of 1883, authorized villages incorporated by special law to issue licenses to peddlers and auctioneers. This section provides a uniform system of licensing all such occupations, which are not likely to disturb the peace and order of the village, or which are not immoral or improper. The keeping of billiard halls, bowling alleys, shooting galleries, etc., are added to the occupations specified in the act of 1870. These are contained in many special charters.]

CHAPTER 141, LAWS 1898.

AN ACT to provide for the licensing of transient retail merchants in cities and villages in the State of New York.

§ 1. No person, whether acting as principal or as agent for another, shall

conduct a transient retail business in any store in any city of the third class, village or town of this state, for the sale of goods which shall be represented or advertised as a bankrupt stock, or as assigned stock, or as goods damaged by fire, water or otherwise, or by any such like representation or device, without first taking out a license therefor from the mayor of such city, president of such village, or the supervisor of such town. The amount of the fee for such license in any city shall be fixed by resolution duly passed by the board of aldermen or common council, and in a village by resolution duly passed by the board of trustees of such village; and in a town by resolution of the town board of such town. Such fee shall not be less than twenty-five dollars nor more than one hundred dollars per month in a city or an incorporated village, and not less than ten dollars nor more than fifty dollars per month in a town. No such license shall be issued for a less period than one month, and shall be renewed monthly during the continuance of such business. The sum paid as license fees shall, in a city or village, be paid to the treasurer of such city or village, and in a town to the supervisor thereof, to be used for city, village or town purposes.

§ 2. Any person as principal or agent, conducting a transient retail business, as described in this act, without obtaining a license therefor, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not less than one hundred dollars nor more than two hundred dollars, and in default of the payment thereof shall be imprisoned for a period of not more than sixty days.

Undoubtedly the ordinance must be within the legislative grant of power or it is void. (Village of Carthage v. Frederick, 122 N. Y., 270.) A village ordinance enacting that all persons within the corporate limits of the village who shall hawk or peddle meat in any of the streets of the village shall pay a license of $30,00 is authorized by this section. (Village of Ballston Spa v. Markham, 58 Hun, 238; 11 N. Y. Supp., 826.) A municipal charter authorized its common council to license and regulate hawkers, peddlers, etc., and to regulate the sale of meats, fish and vegetables. Held, that an ordinance prohibiting the peddling of fruit, garden and farm products in the public streets between five o'clock in the morning and one o'clock in the afternoon was valid. (City of Buffalo v. Schleifer, 2 Miscel laneous, 216.) A village may pass an ordinance requiring all auctioneers to obtain a license, though the auction is held in a store building. It is no defense to a prosecution for violating such ordinances that others had violated it and had not been prosecuted. (Village of Port Jervis v. Close, 6 N. Y. Supp. 211; Brooklyn v. Breslin, 57 N. Y., 591.) The trustees inay delegate the power to grant licenses, upon payment of the fee, to an appropriate officer of the corporation. (Bradley v. City of Rochester, 54 Hun, 141.) It is questionable whether or not a license fee for a variable sum can be fixed. (Village of Deposit v. Pitts, 18 Hun, 478. See People ex rel. Larrabee v. Mulholland, 19 Hun, 549; 82 N. Y., 324.) Inferentially it may be said that a person who travels from place to place for the purpose of carrying to sell or exposing for sale any goods, wares or merchandise would be deemed a peddler. (Village of Stamford v. Fisher, 63 Hun,

1

127.) In reference to the same case, on appeal, it was held that the legislature has power to authorize a municipal corporation to regulate hawking and peddling in its streets. As such a statute, however, is in restriction of the common law, it should receive a strict construction and in an action to recover a penalty prescribed for a violation of a municipal ordinance prohibiting such business, it must appear that the defendant's occupation is clearly within those prohibitions. The statute in coupling the words "hawking" and "peddling," itself suggests the idea that the features of itinerancy and a public offering of goods for sale are present in the occupations of the hawker and the peddler. Either one avails himself of the highway for the conduct of his trade in about the same manner. The evidence established that the defendant had a residence, or store, at Oneonta in the neighboring county of Otsego, and transacted a business with persons in the village of Stamford, Delaware county, in soliciting orders and subsequently delivering, pursuant to such orders, articles of groceries for family use. For this purpose he had a wagon, with which, about once in each month, he made trips to Stamford, filling his previous orders and taking new ones at the various houses. The defendant was not shown to have sold or to have offered for sale, any goods upon the streets, or otherwise to have transacted this business than as described. So that the decision of the question turns upon the point of whether that method of conducting a business distinguishes it from the peddler's or hawker's occupation. It seems to me, clearly, that such a distinction does exist; that it is a very substantial one, and that therefore neither statute nor resolution can be held to apply to defendant's case. (Village of Stamford v. Fisher, 140 N. Y., 190.)

§ 91. Definition of village ordinances.

A village ordinance includes also a rule, by-law, order or regulation of the board of trustees, or of the board of fire, water, light, sewer or cemetery commissioners, approved by the board of trustees, for the violation of which a penalty is imposed; and each provision of this chapter, relating to the enforcement of an ordinance applies to such a rule, by-law, order or regulation.

§ 92. Violation of ordinances.

In

The board of trustees of a village may enforce obedience to its ordinances by prescribing therein penalties for each violation thereof, not exceeding one hundred dollars for any offense. addition to the penalty the board may also ordain that a violation thereof shall constitute disorderly conduct, and that the person violating the same shall be a disorderly person; and such