Donovan v. Town of New Windsor

132 Misc. 860, 231 N.Y.S. 82, 1928 N.Y. Misc. LEXIS 1022

Opinion

Tompkins, J.

The ordinance in question is unreasonable and oppressive because it prohibits rather than regulates the carrying of refuse into the town of New Windsor. It is a well-known fact that household refuse, decayed fruit and garbage may be carried in sealed vehicles or containers without being in any wise offensive or a nuisance. The town board has power, by ordinance, to reasonably regulate the transportation of such materials in or through the town, but this ordinance is prohibitive rather than regulatory and it is for that reason, in my opinion, invalid and unenforcible.

The plaintiff’s motion for an injunction pendente lite is granted, with ten dollars costs to the plaintiff to abide the event.