
    Village of Port Jervis v. Close.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Municipal Ordinances—Licenses—Auctions.
    Under a village charter providing that “it shall be the duty of the trustees, and they shall have power, * * * to prohibit or regulate and license auction sales in said village, and hawking and peddling or stands for the sale of goods * * * in the streets or public grounds," the village may pass an ordinance requiring all auctioneers to obtain a license, though the auction is held in a store building.
    2. Same—Violation of Ordinance.
    It is no defense to a prosecution for violating such ordinance that others had violated it and not been prosecuted.
    Appeal from Orange county court.
    Action by the village of Port Jervis against Ernest M. Close for violation of a village ordinance. Judgment for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      John W. Lyon, for appellant. C. E. Cuddeback, for respondent.
   Pratt, J.

This action was brought to recover penalties for alleged violations by the defendant of section 116 of the by-laws and ordinances of the village of Port Jervis, in relation to the sale of merchandise in said village, without first procuring a license according to the provisions of the ordinance cited. The judgment was rendered by a police justice of the village, and affirmed by the county court, from which defendant appeals. There seems to be no dispute about the facts, as the defendant himself admitted that he violated the ordinance as charged. We think the passage of such an ordinance was clearly within the powers conferred by the village charter by chapter 370, Laws 1873, § 51, which provides that “it shall be the duty of the trustees, and they shall have power, * * * to prohibit or regulate and license auction sales in said village, and hawking and peddling or stands for the sale of goods, merchandise, or other articles in the streets or public grounds of said village, ” etc. The defendant claims that because he leased a store in which to hold his auction he is not liable, or, in other words, that the ordinance in question only applies to streets and public places, and that, if he hired a place in doors for a few days, he could evade the ordinance. In our view, the ordinance was general, and covered all sales at auction, except, perhaps, judicial sales and secondhand furniture. It was intended to apply to the business of auctioneers carried on in the village. The ordinance was reasonable in its terms, and applied to all persons alike, who should attempt to engage in that business. Long and learned arguments have been indulged in by the counsel, but it is clear that the ordinance was within the act of legislature creating the charter, and that it is within the police powers which the legislature can exercise. Selling at auction is essentially public in its character, and properly within the power of the state to regulate. Brooklyn v. Breslin, 57 N. Y. 591.

It was no defense to this proceeding that others had violated the ordinance and not been prosecuted. If we assume that defendant’s construction of the ordinance before quoted is correct, and that it only refers to auction sales upon the street or public places, yet it may well be that under subdivision 37 of the same section the trustees had power to regulate public auctions by passing such by-laws as-they deemed necessary and expedient for the good government of the city, but it is not necessary to go to that section, as the power is clearly granted in the previous subdivision. There is nothing unjust or oppressive in the ordinance, and it cannot be said to be in restraint of trade. We have examined all the exceptions, and find no error. Judgment affirmed, with costs. All concur.  