Mayor of New York v. Bruns

23 Misc. 635, 51 N.Y.S. 1120

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1898
• Status: Published

Opinion

Beekman, P. J.

The undisputed evidence .in the case demonstrated that the defendant had incurred the penalty- prescribed by chapter 174 of the Laws of 1897, for a failure to ¡accompany the delivery of a ton of coal with the' delivery tickets which the statute (section 3) requires to be given in such a case. The justice dismissed the complaint largely on the ground that the defendant- had delivered full weight, and that the mischief which the statute was intended to prevent did not exist in this case.

It is hardly necessary to say that the position thus taken was utterly untenable, and if sustained, would operate as a repeal of the statute. The duty enjoined is to deliver the tickets with the coal, and the penalty imposed is not for a failure to deliver full weight, but for a neglect to furnish the tickets. The court has no power to suspend the operation.of a statute in an individual case because,upon the facts there disclosed, it may seem to be unfair or inequitable,to enforce it. The plaintiff was absolutely entitled to judgment for a sum not exceeding $50, to be determined by the justice, and it was, therefore, error to dismiss the complaint, for which the judgment must be reversed. .

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event;

Gildebsleeve and Giegeeich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant- to abide event.