In re Fiegle

36 Misc. 27, 72 N.Y.S. 438

Opinion

Gaynok, J.:

On September 5th, 1899, the Municipal Asssembly passed an ordinance that licensed vendors and peddlers be permitted to stand with their wagons and. display and sell their wares on hoth sides of Siegel street in the road or carriageway between Graham avenue and Broadway in Brooklyn borough every day excepting Sunday until midnight. The mayor approved such ordinance, and the said street has been so used ever since.

It is too well known to need the citation of authorities that there is no power in the Municipal Assembly, or in the city government in all its departments combined, to appropriate a public street for such a use. This depends on general principles of law which are familiar to lawyers and students of government. But in addition the charter of the city contains an express prohibition against the Municipal Assembly passing any ordinance authorizing “the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same ” (sec. 49, sub. 3).

The ordinance in question is void, and it is the duty of the respondent to clear the street of the obstructions.

Let the writ issue. .