People on Complaint of Laskowski v. Weinberger

• Decision Date: 22 July 1957
• Citation: 8 Misc.2d 953,165 N.Y.S.2d 229
• Parties: The PEOPLE of the State of New York on the Complaint of Stanley J. LASKOWSKI v. Murray WEINBERGER. City Magistrates' Court of City of New York, Traffic Court, Borough of Manhattan
• Court: New York Magistrate Court

Page 229

165 N.Y.S.2d 229

8 Misc.2d 953

The PEOPLE of the State of New York on the Complaint of

Stanley J. LASKOWSKI v. Murray WEINBERGER.

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

Borough of Manhattan.

July 22, 1957.

Ellsworth A. Monahan, Commanding Officer, Legal Bureau, Police Department, New York City, John J. Maguire, New York City, of counsel, for the People.

Mahoney, Spohr & Mahoney, New York City, George A. Spohr, Jr., New York City, and Teague W. McCarthy, of counsel, for defendant.

CREEL, Magistrate.

The defendant, while vending ice cream from a Good Humor ice cream pushcart at approximately 4:40 P.M. on Wednesday, April 3, 1957, in the public highway at a point outside of 88 Wall Street, was served with a 'parking' summons by a police officer for 'parking contrary to posting on signs' alleging a violation of Article 2, Section 15 of the Traffic Regulations of the City of New York. Nearby on a sidewalk, a sign affixed to a stanchion stated 'No Parking 8 A.M. to 6 P.M., Monday to Friday, Department of Traffic.'

Article 2, Section 15 of the Traffic Regulations of New York City provides:

'When official signs have been posted prohibiting, restricting, or limiting the stopping, standing or parking of vehicles, no person shall stop, stand or park any vehicle in violation of the restrictions stated on such signs.'

The defendant moved to dismiss on the ground that this provision of the Traffic Regulations is invalid when applied to pushcarts or any other non motor driven vehicle. It is contended by the defendant that no regulation promulgated by the city can contravene or vary the general law of the State as to 'Parking' set out in the general Vehicle and Traffic Law, Article 1, Section 2, Subdivision 20 wherein 'Parking' is clearly so defined as to limit its application to motor driven vehicles only, and hence cannot be extended by municipal regulation to pushcarts or other non motor driven vehicles. This section of the general law provides:

"Park,' 'parking' or 'parked' shall mean the stopping of a motor vehicle or motor cycle upon any public highway and leaving such motor vehicle or motor cycle unattended by a person capable of operating it, for a period longer than necessary to load or unload passengers or freight. This definition shall apply to all ordinances made by local authorities as provided by this chapter, notwithstanding the provisions of any local ordinance made prior to the adoption of this subdivision.'

As stated above the summons here involved was issued for 'Parking' a pushcart which is conceded to be neither a motor vehicle nor a motor cycle nor any other type of vehicle to which this definition of parking can properly be applied.

In further support of its position the defendant cites the case of City of Rochester v. Quine, 1939, 171 Misc. 598, 11 N.Y.S.2d 918, 920, in which the Court held that the attempt by the City of Rochester to enact a parking ordinance which related to pushcarts was contrary to the State Vehicle and Traffic Laws, Section 2, Subdivision 20, and was void, stating in part: 'In this conflict of definition of parking, therefore, the definition set forth in § 2 of the Vehicle and Traffic Law must prevail. * * * The attempt, therefore, by the City of Rochester to enact a parking ordinance which relates to vehicles not included in the definition in § 2 of the Vehicle and Traffic Law is contrary to the State statute and as to any vehicles not included in the state's definition is void. * * * Information dismissed.'

While this decision is of the City Court of Rochester, not of record, and hence not binding upon a court of this city, it is none the less entitled to great weight being based as it is upon the reasoning of Justice Wheeler in People v. City of Hornell, 256 App.Div. 113, 8 N.Y.S.2d 976 and cases cited therein. Furthermore, the restrictiveness of the definition contained in Subdivision 20 of Section 2 of the Vehicle and Traffic Law upon the power of the City of New York to enact traffic regulations pursuant to the grant of power to this City by Section 54 of that law has been recognized by the Court of Special Sessions of this city, Appellate Part First Judicial Department, in People v. Interstate Dress Carriers, Inc., 203 Misc. 883, 120 N.Y.S.2d 370. Furthermore, the reasoning of those cases that a general policy of the State may not be ignored by municipal regulation unless it is specifically empowered so to do in clear and explicit terms is well founded in our law. Jewish Consumptives Relief Society v. Town of Woodbury, 230 App.Div. 228, 243 N.Y.S. 686, affirmed 256 N.Y. 619, 177 N.E. 165; People ex rel. Kieley v. Lent, 166 App.Div. 550, 152 N.Y.S. 18, affirmed 215 N.Y. 626, 109 N.E. 1088; Great Atlantic & Pacific Tea Co. v. City of New York, 173 Misc. 470, 17 N.Y.S.2d 270; People v. City of Hornell, supra; People v. Marcello Mag. Ct., 25 N.Y.S.2d 533.

It is recognized that the defendant's motion to dismiss is based upon cogent and weighty authority which must control unless they can be validly distinguished.

Although the point was not raised in argument or briefs, it must be noted that the limiting definition of parking contained in Subdivision 20, Section 2 of the Vehicle and Traffic Laws upon which the defendant's motion and authorities are based, itself contains the further limiting clause, 'This definition shall apply to all ordinances made by local authorities as provided by this chapter * * *' which language would appear to indicate a legislative intent to restrict the limitation of this definition of parking to those local ordinances based upon those grants of authority to municipalities made only by the Vehicle and Traffic Law, and not to...