People on Information of Baker v. Kaufman Carpets, Inc.

CourtNew York Court of Special Sessions
Writing for the CourtGILBERT M. LANDY
Citation298 N.Y.S.2d 241,59 Misc.2d 113
PartiesThe PEOPLE, on the information of Ptl. George BAKER Yonkers Police Dept., Complainant, v. KAUFMAN CARPETS, INC., Defendant.
Decision Date22 January 1969

Page 241

298 N.Y.S.2d 241
59 Misc.2d 113
The PEOPLE, on the information of Ptl. George BAKER Yonkers
Police Dept., Complainant,
v.
KAUFMAN CARPETS, INC., Defendant.
Court of Special Sessions, City of Yonkers.
Jan. 22, 1969.

Francis B. Cline, Corp. Counsel, for the People, by Charles calafiura.

Morris Waldhorn, Yonkers, for defendant.

GILBERT M. LANDY, Judge.

The Defendant is charged with violating General Ordinance, 152--1957, Sec. 3, as amended by General Ordinance, 23--1963, of the City of Yonkers. The ordinance now is designated as Chapter 66 of the Code of Ordinances of the City of Yonkers.

It is alleged in the information, that on May 30, 1967, at about 4:25 P.M., the Defendant, the manager of Kaufman Carpets, Inc., store located at Cross County Shopping Center, in Yonkers, sold or offered for sale, carpets or carpeting at the store in violation of the ordinance.

Chapter 66--1, provides as follows:

'66--1. Memorial Day observance.

The legal holiday known as Memorial Day, being [59 Misc.2d 114] by general consent set apart for rest, repose and patriotic observances and uses, and

Page 242

the observance thereof being for the general welfare and and health of the community, the doing of certain acts hereinafter specified, which are deemed serious interruptions and desecrations of the repose and patriotic liberty and sentiment of the community, are prohibited.'

Chapter 66--3 reads:

'66--3. Public traffic on Memorial Day.

All manner of public selling or offering for sale of any property upon such holiday is prohibited, except as follows:'

Section 3 then specifies certain exceptions from the prohibition contained above. However, the sale of or the offering for sale of carpets or carpeting, is not enumerated among the exceptions specified therein.

The Defendant moves to dismiss the information on the ground that there is no authority in law which authorizes the City of Yonkers to 'prohibit' the business activities of the Defendant on Memorial Day, May 30, 1967.

The issue is limited to the question of whether or not the word 'regulating' contained in General Municipal Law Section 86, includes the authority to the city to 'prohibit' the business activities of the Defendant on Memorial Day.

General Municipal Law Section 86, reads as follows:

'86. Regulation of commercial and business activities on Memorial day and Independence day.

The municipal officers and boards in the several cities, towns and villages of this state now having the authority to enact ordinances, may adopt ordinances regulating the nature of commercial and business activities that may be conducted on Memorial day and Independence day and the hours within which the various types of commercial and business activities may be conducted on Memorial day and Independence day. Provision shall be made in such ordinances for punishment of violations thereof.'

It is contended by the Defendant, that if the Legislature had intended to authorize municipalities to 'prohibit' commercial and business activities on Memorial Day, the specific word of prohibition would have been employed in Section 86, in a manner similar to that which is found in the Sabbath Law (General Business Law Art. 2, Secs. 2, 8 (formerly Penal Law Secs. 2140, 2146)).

On that premise, the Defendant contends that the prohibition against the sale of carpets on Memorial Day contained in Code of Ordinances of the City of Yonkers, Section 66, exceeds the power given to the city by the provisions of General Municipal Law Section 86.

[59 Misc.2d 115] It is fundamental that a city has no authority to act in excess of the power granted to it by the Legislature (Brooklyn City...

To continue reading

Request your trial
4 practice notes
  • People v. Leshaw
    • United States
    • New York District Court
    • 15 Mayo 1970
    ...exceeded the power granted to the village under General Municipal Law Section 86--said the court. In People v. Kaufman, Carpets, Inc., 59 Misc.2d 113, 298 N.Y.S.2d 241, the defendant was charged with violating an ordinance by selling or offering to sell carpets on Memorial Day. The defendan......
  • Caldor, Inc. v. Ulster County, No. 888
    • United States
    • United States State Supreme Court (New York)
    • 13 Enero 1981
    ...of the State of New York v. Martins of Hempstead, Inc., 55 Misc.2d 802, 286 N.Y.S.2d 766; People of the State of New York v. Kaufman, 59 Misc.2d 113, 298 N.Y.S.2d 241; Wilcox v. City of Utica, 80 Misc.2d 998, 364 N.Y.S.2d 665.) This court would not pare and sever the objectionable portions ......
  • Cooper v. Cooper
    • United States
    • United States State Supreme Court (New York)
    • 4 Marzo 1969
    ...was no longer in effective existence. The later integration of the terms of that decision into an order entered February 13, 1969, was a [59 Misc.2d 113] ministerial act only and should be effective as of and relate back to the date of the decision. (Commrade v. Commrade, 29 A.D.2d 870, 288......
  • Wilcox v. City of Utica
    • United States
    • United States State Supreme Court (New York)
    • 4 Octubre 1974
    ...It is fundamental that a City has no authority to act in excess of the power granted to it by legislature. See People v. Kaufman Carpets, 59 Misc.2d 113 at page 115, 298 N.Y.S.2d 241, at page 242, also Herkimer Corporation v. Village of Herkimer, 34 A.D.2d 371, 312 N.Y.S.2d 22 (Fourth Depar......
4 cases
  • People v. Leshaw
    • United States
    • New York District Court
    • 15 Mayo 1970
    ...exceeded the power granted to the village under General Municipal Law Section 86--said the court. In People v. Kaufman, Carpets, Inc., 59 Misc.2d 113, 298 N.Y.S.2d 241, the defendant was charged with violating an ordinance by selling or offering to sell carpets on Memorial Day. The defendan......
  • Caldor, Inc. v. Ulster County, No. 888
    • United States
    • United States State Supreme Court (New York)
    • 13 Enero 1981
    ...of the State of New York v. Martins of Hempstead, Inc., 55 Misc.2d 802, 286 N.Y.S.2d 766; People of the State of New York v. Kaufman, 59 Misc.2d 113, 298 N.Y.S.2d 241; Wilcox v. City of Utica, 80 Misc.2d 998, 364 N.Y.S.2d 665.) This court would not pare and sever the objectionable portions ......
  • Cooper v. Cooper
    • United States
    • United States State Supreme Court (New York)
    • 4 Marzo 1969
    ...was no longer in effective existence. The later integration of the terms of that decision into an order entered February 13, 1969, was a [59 Misc.2d 113] ministerial act only and should be effective as of and relate back to the date of the decision. (Commrade v. Commrade, 29 A.D.2d 870, 288......
  • Wilcox v. City of Utica
    • United States
    • United States State Supreme Court (New York)
    • 4 Octubre 1974
    ...It is fundamental that a City has no authority to act in excess of the power granted to it by legislature. See People v. Kaufman Carpets, 59 Misc.2d 113 at page 115, 298 N.Y.S.2d 241, at page 242, also Herkimer Corporation v. Village of Herkimer, 34 A.D.2d 371, 312 N.Y.S.2d 22 (Fourth Depar......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT