People v. Windsor Madison Corp.

CourtNew York Magistrate Court
Citation173 N.Y.S.2d 964,12 Misc.2d 446
Decision Date05 May 1958
PartiesPEOPLE of The State of New York, Complainant, v. WINDSOR MADISON CORP., Defendant. City Magistrate's Court of New York City, Municipal Term, Borough of Manhattan

Page 964

173 N.Y.S.2d 964
12 Misc.2d 446
PEOPLE of The State of New York, Complainant,
v.
WINDSOR MADISON CORP., Defendant.
City Magistrate's Court of New York City, Municipal Term,
Borough of Manhattan.
May 5, 1958.

Page 966

Peter Campbell Brown, Corp. Counsel, New York City (Joseph M. Callahan, Jr., and Samuel Mandell, New York City, of counsel), for the people.

Leon London, New York City, for defendant.

MANUEL A. GOMEZ, City Magistrate.

Defendant is charged with violating Chapter 32, Article 28, Section B32-207.0 (Chapter 929, Laws of 1937) of the Administrative Code of the City of New York in that it unlawfully published and conducted a 'forced out of business sale' without a license therefor.

It was established at the trial that defendant corporation, which conducts a haberdashery store in the Borough of Manhattan, applied to the Commissioner of Licenses of the City of New York for a license to conduct and advertise a 'forced out [12 Misc.2d 447] of business sale'. The Commissioner refused to issue the license. The defendant made an application to the Supreme Court to review the determination of the Commissioner of Licenses. Mr. Justice Steuer, in an extensive opinion, upheld the determination of the Commissioner as being neither arbitrary nor capricious. Windsor Madison Corp. v. O'Connell, Sup., 172 N.Y.S.2d 198.

Page 967

The defendant did not await the determination of the Commissioner of Licenses to begin to conduct and advertise the sale, nor was it deterred by the denial of the license. The testimony at the trial establishes beyond a reasonable doubt, that, during the period that the application was pending and subsequent to its denial, the defendant affixed large signs to the exterior and on the windows of its premises, stating that it was being forced out of business.

Numerous summonses were served upon defendant in an effort to enforce compliance with the Administrative Code. The first eight summonses were consolidated at the trial herein, but it was agreed that separate verdicts are to be rendered.

This Court is not, of course, the proper forum to review the decision of the Commissioner of Licenses and its affirmance by the Supreme Court. The sole issue before this Court is whether the defendant has published and conducted a 'forced out of business sale' without first procuring a license therefor. That issue is resolved against the defendant. Even if the decision and judgment of Mr. Justice Steuer should be reversed on appeal, the defendant was not justified in proceeding with the sale herein so long as the license had not been granted.

The only remaining question is the validity of the Code provisions, the constitutionality of which is challenged by the defendant.

Section B32-205.0, which defines the sales covered by Article 28 of Chapter 32 of the Administrative Code, provides as follows:

'Definitions.--Whenever used in this article, the following terms shall mean:

'1. 'Sale.' The sale or an offer to sell to the public goods, wares and merchandise of any and all kinds and descriptions on hand and in stock in connection with a declared purpose, as set forth by advertising, on the part of the seller that such sale is anticipatory to the termination, closing, liquidation, revision, wind-up, discontinuance, conclusion or abandonment of the business in connection with such sale. It shall also include any sale advertised to be a 'fire sale,' 'adjustment sale,' 'creditor's sale,' 'trustee's sale,' 'liquidation sale,' 'reorganization sale,' 'alteration sale,' 'executor's sale,' 'administrator's sale,' [12 Misc.2d 448] 'insolvent sale,' 'insurance salvage sale,' 'mortgage sale,' 'assignee's sale,' 'adjustor's sale,' 'receiver's sale,' 'loss-of-lease sale,' 'wholesaler's close-out sale,' 'creditor's sale,' sale,' 'forced-out-of-business sale,' 'removal sale' and any and all sales advertised in such manner as to reasonably convey to the public that upon the disposal of the stock of goods on hand, the business will cease and be discontinued.

'2. 'Publish,' 'publishing,' 'advertisement,' 'advertising.' Any and all means of conveying to the public notice of sale or notice of intention to conduct a sale, whether by word of mouth, by newspaper advertisement, by magazine advertisement, by handbill, by written notice, by printed

Page 968

notice, by printed display, by billboard display, by poster, by radio announcement and any and all means including oral, written or printed.'

The statute further provides that it shall be unlawful to publish or conduct a sale of the type indicated without a license therefor. (B32-207.0) In order to secure a license, an application in writing, under oath, must be submitted which shall, among other things, contain an itemized list of the goods, wares and merchandise to be offered for sale, the place where such stock was purchased or acquired,...

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3 practice notes
  • State v. Williams, No. 74
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 23, 1960
    ...must be no more drastic than is reasonable to accomplish the end for which the law was adopted. People v. Windsor Madison Corp., 1958, 12 Misc.2d 446, 173 N.Y.S.2d In summary, the state has a limited right, under the police power, to regulate private schools and their agents and solicitors,......
  • The city of N.Y. v. Transp.azumah LLC., 401763/10
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2011
    ...did not violate premises operator's rights even though it impaired or imposed control on business]; People v Windsor Madison Corp., 12 Misc 2d 446 [City Magistrate's Ct, Borough of Manhattan 1958] [statute requiring license to conduct certain type of sale did not interfere with defendant's ......
  • The City Of N.Y. v. Transp.Azumah LLC, Index No. 401763/10
    • United States
    • United States State Supreme Court (New York)
    • March 3, 2011
    ...did not violate premises operator's rights even though itPage 20impaired or imposed control on business]; People v Windsor Madison Corp., 12 Misc 2d 446 [City Magistrate's Ct, Borough of Manhattan 1958] [statute requiring license to conduct certain type of sale did not interfere with defend......
3 cases
  • State v. Williams, No. 74
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 23, 1960
    ...must be no more drastic than is reasonable to accomplish the end for which the law was adopted. People v. Windsor Madison Corp., 1958, 12 Misc.2d 446, 173 N.Y.S.2d In summary, the state has a limited right, under the police power, to regulate private schools and their agents and solicitors,......
  • The city of N.Y. v. Transp.azumah LLC., 401763/10
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2011
    ...did not violate premises operator's rights even though it impaired or imposed control on business]; People v Windsor Madison Corp., 12 Misc 2d 446 [City Magistrate's Ct, Borough of Manhattan 1958] [statute requiring license to conduct certain type of sale did not interfere with defendant's ......
  • The City Of N.Y. v. Transp.Azumah LLC, Index No. 401763/10
    • United States
    • United States State Supreme Court (New York)
    • March 3, 2011
    ...did not violate premises operator's rights even though itPage 20impaired or imposed control on business]; People v Windsor Madison Corp., 12 Misc 2d 446 [City Magistrate's Ct, Borough of Manhattan 1958] [statute requiring license to conduct certain type of sale did not interfere with defend......

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