Village of Stamford v. Fisher

• Decision Date: 28 November 1893
• Citation: 35 N.E. 500,140 N.Y. 187
• Parties: VILLAGE OF STAMFORD v. FISHER.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 187

35 N.E. 500

VILLAGE OF STAMFORD

v.FISHER.

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from supreme court, general term, fourth department.

This action was brought by the village of Stamford, in a justice's court, to recover from John H. Fisher, the defendant, a penalty for his violation of the terms of a resolution passed by the village trustees, which prohibited all persons from hawking or peddling in the public streets without a license. Upon appeal from the judgment recovered by the village, the county court ordered a reversal, and its decision has been affirmed by the general term of the fourth department. 17 N. Y. Supp. 609. The plaintiff thereupon obtained leave to appeal to this court, on the ground that a question of law was involved, which ought to be reviewed here. Affirmed.

The facts, so far as material, are stated in the opinion.

F. R. Gilbert, for appellant.

George A. Fisher, for respondent.

GRAY, J.

The question which we are asked to review, and upon which the learned justices at the general term below have differed in opinion, is whether the defendant came under the provisions of chapter 465 of the Laws of 1883, and of the resolution passed pursuant to the authority of that act by the trustees of the village of Stamford. The statute provides as follows, viz.: ‘The trustees of any village in this state incorporated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power and authority to restrain, regulate or prevent hawking and peddling in the streets, except the peddling and sale of meats, fish, fruits, and farm produce, to regulate, restrain or prohibit sales by auction and grant licenses to peddlers and auctioneers and fix the amount to be paid therefor.’ The resolution which was passed read: ‘Resolved, that from and after the passage of this resolutionall persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village of any goods, wares or merchandise of any kind or description, excepting meats, fish, fruits and farm products until such person or persons shall have first obtained a license therefor, as provided in the next section.’ Subsequent portions of the resolution provided for a penalty to be imposed in case of a violation. For the plaintiff, it was argued that the defendant was a peddler, within the meaning of the statute, while for him it was insisted that such was not a proper description of his occupation, that it was not one within the meaning of the statute, and that he was under no obligation to take out a license. The evidence established that the defendant had a residence or store at Oneonta, in the neighboring county of Otsego, and transacted a business with persons in the village of Stamford, Delaware county, in soliciting orders, and subsequently delivering, pursuant to such orders, articles of groceries for family use. For this purpose he had a wagon, with which, about once in each month, he made trips to Stamford, filling his previous orders, and taking new ones at the various houses. The defendant was not shown to have sold, or to have offered for sale, any goods upon the street, or otherwise to have transacted this business than as described; so that the decision of the question turns upon the point of whether that method of conducting a business distinguishes it from the peddler's or hawker's occupation. It seems to me, clearly, that such a distinction does exist; that it is a very substantial one; and that, therefore, neither statute nor resolution can be held to apply to the defendant's case.

It is unnecessary to...