Lane-Marvey Corp. v. McCaffrey

• Decision Date: 02 March 1953
• Citation: 204 Misc. 166
• Parties: Lane-Marvey Corporation, Plaintiff, and Rocket Associates, Inc., Intervener, Plaintiff,<BR>v.<BR>Edward T. McCaffrey, as Commissioner of Licenses of The City of New York, Defendant.
• Court: New York Supreme Court

204 Misc. 166

Lane-Marvey Corporation, Plaintiff, and Rocket Associates, Inc., Intervener, Plaintiff,

v.Edward T. McCaffrey, as Commissioner of Licenses of The City of New York, Defendant.

March 2, 1953.

Lester Samuels and Gerard Mandelbaum for plaintiff and intervener, plaintiff.

Denis M. Hurley, Corporation Counsel (Milton Mollen and Janet H. Lewin of counsel), for defendant.

McNALLY, J.

This is an action for a declaratory judgment. The plaintiff is engaged in the business of distributing and maintaining an electrically operated mechanical pony on a fixed base with a saddle, intended for a single child, so constructed as to enable a child, upon the insertion of a dime, to obtain a ride for one minute, vibrating up and down with either a bucking or undulating motion. The defendant has ruled that the plaintiff may not operate or cause to be operated said device without a license pursuant to article 5 of title B of chapter 32 of the Administrative Code of the City of New York.

The intervener distributes and maintains electrically operated rocket space ships and similar devices on a fixed base with a seat intended for a single child, which by insertion of a dime enables a child to obtain a ride consisting of one minute, vibrating up and down with a bucking or similar motion. The defendant has also ruled that the intervener is subject to the license provisions of article 5 of title B of chapter 32 of the Administrative Code.

The defendant preliminarily asserts that declaratory judgment is not available to the plaintiff because on June 25, 1952, in the City Magistrate's Court of the City of New York, by reason of the conduct of the plaintiff's said business, the plaintiff was duly found guilty after a trial of violating section B32-41.0 of the Administrative Code in that the plaintiff was operating a common show without a license (People v. Lane-Marvey Corp., 203 Misc. 413). The plaintiff has appealed from the said judgment of conviction and said appeal is now pending.

The court is of the opinion that the said objection on the part of the defendant is well taken and that declaratory judgment is not available in order to correct an alleged error in respect of an adjudication which is subject to review by an appeal (Chicago Pneumatic Tool Co. v. Hughes Tool Co., 61 F.Supp. 767, affd. 156 F.2d 981, certiorari denied 329 U. S. 781).

The intervener's claim is, however, not subject to the same infirmity and must be dealt with as if it were the sole claim presented for determination (Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 228). The defendant argues, however, that declaratory judgment may not be utilized to prevent the enforcement of a penal statute save in exceptional circumstances. The principle relied on is well established (Davis v. American Soc. for Prevention of Cruelty to Animals, 75 N.Y. 362; Reed v. Littleton, 275 N.Y. 150). Nevertheless, it has been held that declaratory judgment is an appropriate remedy "If the question * * * were * * * whether plaintiff was required to obtain a license before engaging in his business" (Reed v. Littleton, supra, p. 156).

Invariably, both civil and criminal sanctions are provided for as a means of enforcing statutes which license, tax or regulate the conduct of business. If, therefore, the principle contended for by the defendant was applied in respect of all such statutes, declaratory judgment would be unavailable to those affected by them. That is not the case, as is evident from cases such as Dun & Bradstreet v. City of New York (276 N.Y. 198); Pathe Exchange v. Cobb (202 App. Div. 450, affd. 236 N.Y. 539); Booth v. City of New York (268 App. Div. 502, affd. 296 N.Y. 573), and Stampers Arrival of Buyers v. City of New York (269 App. Div. 741, affd. 296 N.Y. 574).

The fact that article 5 of title B of chapter 32 of the Administrative Code provides criminal sanctions is not a bar to a judgment declaring the effect of the licensing provisions in respect of the business of the intervener. Where the dominant purpose is to obtain immunity from prosecution, or a declaration is sought in respect of a criminal statute which operates independently of the licensing statute, it has been held declaratory judgment is inadvisable as an unwarranted interference with the administration and the enforcement of criminal laws. In the case at bar, the penal sanctions are contained in article 5 and, therefore, a declaratory judgment in respect of its licensing provisions must affect to some extent its enforcement provisions. Where, as here, the right to engage in the business activity is clear, except for the effect of article 5, and it does not appear that the dominant purpose is to establish immunity from prosecution, declaratory judgment is proper.

Section B32-40.0 of the Administrative Code provides in part:

"Definitions. — a. Whenever used in this article, the term `common show' shall include:

"(1) a carousel, ferris wheel, gravity steeplechase, chute, scenic cave, bicycle carousel, scenic railway, striking machine, switchback, merry-go-round, puppet show, amusement-arcade and all other shows of like character, a theatre, other than an open-air theatre, in which the seating capacity exceeds six hundred

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