Picone v. Comm'r of Licenses of New York City
| Decision Date | 20 October 1925 |
| Citation | 241 N.Y. 157,149 N.E. 336 |
| Parties | PICONE v. COMMISSIONER OF LICENSES OF NEW YORK CITY. |
| Court | New York Court of Appeals Court of Appeals |
Petition by Joseph Picone for an order of peremptory mandamus to compel the Commissioner of Licenses of New York City to issue a junk boat license. From an order of the Appellate Division (214 App. Div. 724, 209 N. Y. S. 904), affirming an order denying such petition, petitioner appeals.
Orders reversed, and an order of peremptory mandamus granted.
Appeal from Supreme Court, Appellate Division, Second department.
James P. Kohler, of Brooklyn, for appellant.
George P. Nicholson, Corp. Counsel, of New York City (Charles J. Druhan and William R. Wilson, both of New York City, of counsel), for respondent.
The board of aldermen of the city of New York has power to provide for licensing and otherwise regulating the business of junk dealers. Greater New York Charter (Laws 1901, c. 466) § 51. The Code of Ordinances of the City of New York ordained by the board of aldermen provides that junk dealers must be licensed in order to engage in the business (chapter 14, art. 1, § 1), and that all applications for licenses shall be made to the commissioner of licenses in such form and detail as he shall prescribe (section 3). Article 9, chapter 14, regulates the licensing of junk dealers generally. Culling out the provisions relating to junk boatmen, we find that section 120 defines junkman, junk shop, junk cartman, and junk boatman. A junk boatman is defined as a junk dealer, and his place of business a junk shop. Section 120 provides that any vessel in the waters of the city used for the purpose of collecting or selling junk shall be deemed a junk boat, and the owner thereof a junk dealer, and further provides that, in case of a junk boat, there shall be but one person on the boat.
Section 121 provides that every junk dealer shall pay an annual fee of $20, and that a junk dealer operating a junk boat shall furnish a bond, with sufficient surety, approved by the commissioner of licenses, in the sum of $1,000, conditioned for the due observance of all provisions of law and municipal ordinances relating to such dealers.
Section 122 provides that no junk boatman shall carry on business at any other place than the one designated in the license therefor, which place of business shall be within the limits of the city of New York; that no junk boatman shall knowingly purchaseanything from a minor, apprentice, or servant, or from any person between the hours of 6 p. m., and 7 a. m.; that with certain exceptions no junk shall be sold or disposed of by a junk boatman until the expiration of 48 hours after the purchase or receipt thereof; that licensed secondhand dealers shall not deal in junk, or employ or use a boat for the purpose of collecting junk, that no licensed junk boatman shall be licensed as a pawnbroker or dealer in secondhand articles, or shall purchase or sell any new goods.
Section 123 requires junk boatmen to keep at their place of business a record of purchases. If the purchase consists of articles from a scow, coal boat, lighter, tug, or other vessel, the record shall contain the name of the vessel and the name and residence of the owner thereof.
Section 124 provides for a report of purchases to the police commissioner on notice. Section 125 requires the junk dealer to notify the police as to lost or stolen goods coming into his possession. Section 126 provides for a fine of not more than $200, or imprisonment not exceeding 60 days, or both fine and imprisonment, for any violation of these provisions.
Appellant, who had been for some years a junk boatman,applied for a junk boat license to buy and sell junk in the harbor of the city of New York for the year beginning November 1, 1924. His application was refused solely for the reasons (1) that relator had no junk shop license, i. e., a license in addition to and as distinguished from a junk boat license; (2) that there was no room for further applicants for junk boat licenses. He thereupon applied for an order of peremptory mandamus, alleging in his moving papers, along with some wholly unnecessary and undignified comments on the methods of the city administration, in substance that the action of the commissioner of licenses was arbitrary, tyrannical, and unreasonable, in that the ordinance vested in him no discretion arbitrarily to limit the number of junk boat licenses, or to limit such licenses to those who had other junk shop licenses. The result of this ruling would be to exclude from the business of junk dealer one who sought only the privilege of collecting or selling junk in the harbor of the city of New York by means of a boat, should he apply for a license after the commissioner had granted as many junk boat licenses as he deemed...
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