People on Complaint of Fricano v. Silverman

• Citation: 183 N.Y.S.2d 700,16 Misc.2d 158
• Parties: PEOPLE of the State of New York on the complaint of Patrolman John S. FRICANO v. Herman SILVERMAN, Defendant. PEOPLE of the State of New York on the complaint of Patrolman John S. FRICANO v. Stanley YOUNG, Defendant. City Magistrates' Court of New York City, East New York Court, Borough of Brooklyn
• Decision Date: 10 March 1959
• Court: New York Magistrate Court

Page 700

183 N.Y.S.2d 700

16 Misc.2d 158

PEOPLE of the State of New York on the complaint of

Patrolman John S. FRICANO v. Herman SILVERMAN, Defendant.

PEOPLE of the State of New York on the complaint of

Patrolman John S. FRICANO v. Stanley YOUNG, Defendant.

City Magistrates' Court of New York City, East New York

Court, Borough of Brooklyn.

March 10, 1959.

Rose L. Weisler, Police Department Legal Bureau, New York City, for the People.

Turk & Walzer, New York City, by Carl Turk, New York City, for defendants.

MATZKIN, City Magistrate.

The defendants are charged with violating the provisions of Section 82d7-15.0, subdivision b, of the Administrative Code in that they

'did unlawfully park motor vehicles between the building line and the curb line for the purpose of storage, display and sale of said vehicles * * *.'

At the trial it was stipulated that the Silverman case be tried and that the testimony of that case be binding on the defendant Young.

The facts adduced at this trial, briefly, are as follows: Four motor vehicles were parked outside premises of the defendant Silverman at 1524 Bushwick Avenue and two cars were parked outside premises of the defendant Young at 1520 Bushwick Avenue, both Brooklyn. The defendants are auto dealers. Said cars occupied about 16 feet of the paved surface, at right angles immediately adjacent to the defendant's store front, between the building and the curb, within the area which was formerly courtyard. The distance from the curb to the store front is 39 feet. The curb in front of the premises 1520 was cut but there was no cut in the curb in front of the adjacent premises 1524. The dimensions of the roadway, sidewalk and space formerly courtyard at the portion of Bushwick Avenue on which are located the defendant's premises, are 120 feet, sub-divided into a vehicular roadway of 42 feet, and an area made up of 19 feet of sidewalk and 20 feet of space which was formerly courtyard, making a total of 39 feet on each side. The 20-foot courtyard area was established by the provisions of Chapter 228, Laws of 1863, which provided that '20 feet of said (Bushwick) Avenue, between Wall Street and City Line shall be set aside and used for courtyard only.' It is this courtyard area which was subsequently repealed.

By virtue of Chapter 396, Laws of 1909, and Resolution No. 21 of the Board of Estimate and Apportionment, adopted on September 20, 1918, the jurisdiction of Bushwick Avenue was assigned to the Park Department of the City of New York.

By virtue of Chapter 929, Laws of 1937 (An Act to provide an Administrative Code for the City of New York in harmony with and supplemental to the New York City Charter), the jurisdiction of Bushwick Avenue was turned over to the Borough President on January 1st, 1938.

It was during the period that the jurisdiction of Bushwick Avenue was assigned to the Park Department of the City of New York that the prescription of the 20-foot courtyard was repealed.

Section 82d7-15.0, subdivision b, of the Administrative Code provides that 'It shall be unlawful for any person, directly or indirectly, to use any portion of a sidewalk or courtyard, established by law, between the building line and the curb line for the parking, storage, display or sale of motor vehicles.' This Section took effect January 1st, 1938, and was a modification of the Section of the Code of Ordinances in existence at the time the Administrative Code was adopted.

The question here is whether the defendant violated the law by parking in the space which was formerly courtyard.

The briefs of the People and the defendant, and the Court's personal search discloses no decision or opinion under the pertinent subdivision of this Section. The case here is one of novel impression. The Court has been compelled to go afield to find law germane to the issue.

In the case of In re Lafayette Avenue, 1922, 118 Misc. 161, 193 N.Y.S. 802, 805, the Court stated: 'The term 'courtyard' is a corrupt form of 'curtilage' and means the same thing (citing cases) and the definitions of that word clearly indicate that it designated a space of land about a dwelling house, which not only might be inclosed, but within which appurtenant buildings and structures might be erected (citing cases).'

In offenses against the habitation, a dwelling house at common law 'not only included the premises actually used as such, but also such out buildings as were within the curtilage or courtyard surrounding the house.' Perkins on Criminal Law (1957) Chapter 3, entitled 'Offenses against the Habitation', subdivision on 'Buildings within the Curtilage,' at page 160.

This is cited only to indicate the propinquity, in law, between the courtyard and the building.

Magistrate Pinto, in the unreported case of People on the complaint of Abraham Cohen against John R. Schmacke, 10th District Magistrates' ...