Automatic Canteen Co. v. City of Buffalo

26 A.D.2d 614, 271 N.Y.S.2d 725, 1966 N.Y. App. Div. LEXIS 3825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1966
• Status: Published

Opinion

Judgment unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: Appellants-plaintiffs jointly asked for a declaratory judgment declaring that article XVII, sections 330 through 341 of chapter 7 of the ordinances of respondent-defendant City of Buffalo, requiring the licensing of certain vending machines, is invalid and unconstitutional. The trial court found that one section of the ordinance dealing with citizenship and age was unconstitutional and no appeal was taken from this determination. The court further found that this section did not affect the total constitutionality of the ordinance and held that the rest of the ordinance was constitutional and valid and dismissed the complaint. We agree with this conclusion. However, in these circumstances the court should not have dismissed the complaint but should have declared the rights of the parties, i.e., declared that the ordinance is constitutional (Hoffman v. City of Syracuse, 2 N Y 2d 484, 487; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45, 51; Matter of Mandis v. Gorski, 24 A D 2d 181, 184). The trial court having failed to do this, the judgment appealed from should be modified by declaring that judgment be entered in favor of defendant. (Appeal from judgment of Erie Trial Term, adjudging as to the constitutionality of ordinances as to taxes against certain types of vending machines.) Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.