People v. Psaty & Fuhrman, Inc.

Decision Date11 June 1963
Citation39 Misc.2d 435,240 N.Y.S.2d 830
CourtNew York City Court
PartiesPEOPLE of the State of New York v. PSATY AND FUHRMAN, INC., substituted for William Faddis.

Frank S. Hogan, Dist. Atty., New York County, by Thomas Reynolds, Asst. Dist. Atty., for the People.

Department of Highways, City of New York, by Royal S. Radin, of counsel, amicus curiae.

M. Carl Levine, Morgulas & Foreman, New York City, by Jerrold Morgulas, New York City, of counsel, for defendant.

WILLIAM E. RINGEL, Judge.

The defendant is a builder and general contractor engated in erecting a building in this county. It coordinates the work of several subcontractors, one of whom is Morrell-Brown.

A permit was duly issued to the defendant, authorizing the storage of equipment and material on the public roadway. Thereafter, by letter dated February 19, 1963, the Commissioner of Highways of the City of New York, 'suspended' this permit. Nevertheless, the defendant continued to occupy part of the roadway with a trailer, and Morrell-Brown, with the defendant's knowledge, placed building material on the roadway.

Six summonses were served on the defendant, charging it with violation of the Administrative Code. Since all of these cases involve the same questions of law and fact, this decision will be determinative of all of them.

Two questions of law are presented:

First, has the Department of Highways the power to 'suspend' rather than to 'revoke' a permit once validly issued? (This is a question of first impression in this jurisdiction.)

Second, assuming that the Commissioner has the power to 'suspend' such permits, may a general contractor to whom the permit had been issued, be found guilty of the violation of the provisions of the Administrative Code of the City of New York, (sec. 82d& 7-10.0, renumbered 692f-1.0), if the violation was created by his subcontractor, of which the defendant had knowledge.

Defendant contends that both questions must be answered in the negative.

Briefly, the section in question (as amended), (The City Record, January 11, 1963), empowers the Commissioner of Highways to grant permits to builders to occupy not more than one-third of the roadway with building material and equipment.

This permit may be 'revoked' by the Commissioner 'at pleasure.' Violation of this section subjects the violator to both civil and criminal penalties for each and every day of the violation.

Nowhere in the statute does the word 'suspend' appear. Was it the intention of the local legislature to give this power to the Commissioner? If that was its intention, the Court would be obliged to interpret the statute accordingly. (Westchester County Society for the Prevention of Cruelty to Animals v. Mengel, 266 App.Div. 151, 41 N.Y.S.2d 605.) Nor need a literal interpretation of the statute be resorted to in order to give effect to the legislative intent. (People ex rel. Wood v. Lacombe, 99 N.Y. 43, 1 N.E. 599.)

As the Court pointed out in Lacombe, supra, in ascertaining legislative intent, the Court should inquire into the causes or necessity for the enactment of the particular statute, as well as other circumstances.

It is obvious to any native or visitor to this city that traffic congestion is an acute problem here. It is equally obvious that construction and repair work, in and about our public thoroughfares, contribute greatly to the traffic problem. Both of these activities are necessary to the economic life of this city. Patently, our city legislature was faced with the problem of permitting both activities to continue simultaneously, without the one unduly hampering the other. The section of the Administrative Code now before us, was deemed to be a solution to this problem.

But in addition to determining the cause and need for a particular statute, we must also bear in mind another rule of statutory interpretation, in determining legislative intent.

That rule holds that '[a]ll new laws are supposed to be enacted with knowledge on the part of the lawmakers of the existence and scope of the old laws.' (Matter of Erikson v. Helfand, 1 A.D.2d 59, 147 N.Y.S.2d 157, aff'd., 1 N.Y.2d 775, 153 N.Y.S.2d 48, 135 N.E.2d 586, citing Davis v. Supreme Lodge, Knights of Honor, 165 N.Y. 159, 58 N.E. 891; N. Y. v. Maltbie, 274 N.Y. 90, 8 N.E.2d 289; McKinney's Cons.Laws of N. Y., Book 1, Statutes, § 17.)

Our Administrative Code contains many provisions whereby a Commissioner or other city official has been empowered, in specific language, to suspend or revoke a permit or license over which his department has jurisdiction.

The following are some examples:

The Administrative Code: Police Department (§ 436-1.0, subd. f; § 436-2.0, subd. k, par. 38); Department of Health (§ 561-2.0); Department of Markers (§ B36-8.0); Department of Water Supply, Gas and Electricity (§ B30-16.0).

When, as in this case, the city legislature omitted the word 'suspend' from among the power given to the Highway Commissioner, we are compelled to conclude that such omission was deliberate and that the granting of the power to suspend was not intended.

There is a vast difference between 'suspend' and 'revoke.'

The American College Dictionary defines the former as, 'to cause to cease for a time from operation or effect as a law, rule, privilege or the like.'

kit defines the latter as, 'to take back or withdraw; annul, cancel or reverse; rescind or repeal: to revoke a decree.'

The former is a temporary cessation of a privilege; the latter is a complete cancellation thereof.

Violation of this section of the Code carries with it a double-barrelled penalty, civil as well as penal. When a permit has been revoked, the permittee knows what he is in for, if he puts or permits material and/or equipment to clog the roadway. On the other hand, where the permit has been suspended, what is his position? Modern building and repair equipment and material are not building-block toys. Moving them about is difficult and expensive. Will the suspension be for an hour, a day, or a week? What is the permittee supposed to do during such an indefinite cessation of his privilege? The Commissioner's letter of February 19, 1963, is completely silent on these matters.

It is for reason such as are here indicated, that the law in this State requires that pent statutes must be strictly construed. A citizen is entitled to know with reasonable certainty that which the law prohibits. Such statutes must be so worded that they convey an unequivocal warning to a citizen of the rule which is to be obeyed, and, especially as to acts mala per se--there must be a clear and positive expression of the legislative intent to make them criminal. (People v. Feeney, 24 Misc.2d 74, 207 N.Y.S.2d 877; People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568; Patterson v. University of State of N.Y., 35 Misc.2d 608, 231 N.Y.S.2d 557; People v. Smoke, 38 Misc.2d 939, 239 N.Y.S.2d 230.)

The dilemma in which the defendant finds itself...

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1 cases
  • People v. Flag Container Service Inc.
    • United States
    • New York City Court
    • March 28, 1991
    ...A.C. § 19-122 to either the owner of the premises or to the builder and not to the owner of the equipment. People v. Psaty & Fuhrman, 39 Misc.2d 435, 240 N.Y.S.2d 830 (Crim.Ct.1963); City of New York v. Benenson, 41 Misc.2d 20, 244 N.Y.S.2d 653 In order for a local criminal court informatio......
1 books & journal articles
  • Wisconsin Court of Appeals rules promissory note to investor is a 'security'.
    • United States
    • Wisconsin Law Journal No. 2007, November 2007
    • May 7, 2007
    ...-- there must be a clear and positive expression of the legislative intent to make them criminal." People v. Psaty & Fuhrman, Inc., 240 N.Y.S.2d 830, 834 (N.Y.City Crim.Ct.1963). In Wisconsin, there is no similar requirement that all criminal statutes be strictly construed. As early as ......

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