City of New York v. 503 Fifth Avenue Co.

(dissenting). I dissent on the ground that that part of an ordinance which imposes from the adoption of the ordinance a per diem penalty on the maintenance, without a license, of all existing signs, previously duly authorized, irrespective of whether good, bad, or indifferent, or dangerous or not, *279before reasonable opportunity to acquire a license is so unreasonable that it is invalid as an exercise of the police power. The unreasonableness is not to be determined by what has been, but what may be, done under it. City of Rochester v. West, 164 N. Y. 510, 514.

Judgment should be affirmed, with costs.

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

In an action to recover penalties for violating a city ordinance requiring a license before *278certain acts may be lawfully done, it is no defense to show that the defendant diligently endeavored to procure a license but was delayed through the stupidity or laziness of employees in the license bureau. If such a “ defense ” may prevail, the city ordinances are so much waste paper. With a' valid ordinance such as this, the only issue in a suit for a penalty is whether the ordinance was violated.

This electric sign ordinance is reasonable and perfectly plain. It provides that: “No electric sign shall be maintained in the City of New York contrary to the provisions of this ordinance under a penalty of ten dollars a day for each day or part of a day the same shall be so maintained. ’ ’ It provides a plain and simple method of obtaining a license. The ordinance was approved July 24,1912, the sign then existing, and defendant’s application for a license is dated September 26,1913, and was issued September 29, 1913. The comment of the Appellate Division in City of New York v. Hewitt, 91 App. Div. 446, is pertinent: “ If, then, this judgment can be sustained at all, it must be upon the ground that the court may, as matter of benignity, suspend the operation of the ordinance against an individual. The court has no power of dispensation.”

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

Guy, J., concurs.