
    The People of the State of New York ex rel. George Comatus, Respondent, v. Theodore B. Willis, as Commissioner of City Works of the City of Brooklyn, and N. I. Flocken, as Superintendent of Streets, Appellants.
    
      Brooklyn — limited right of its common council to regulate the use of its streets — booths-to display goods, xmauthorized—powers of individual aldermen.
    
    The charter of the city of Brooklyn gave power to the common council thereof “ to regulate all matters connected with the public wharves and all business, conducted thereon, and with all parks, places and streets of the city.”
    
      Held, that this provision simply authorized the common council to regulate lawful uses of the streets, such as the deposit of building materials, the unloading-of vehicles,.'etc.;
    That it did not authorize it to adopt an ordinance empowering the individual, alderman in each ward of the city to grant permits to use a portion of the sidewalk for displaying goods and merchandise;
    That a peremptory writ of mandamus properly issued to compel the commissioner and the superintendent of streets of Brooklyn to remove stands and booths erected on the streets of that city for the display of goods and merchandise.
    Appeal by Theodore B. Willis, as commissioner of city works of the city of Brooklyn, and another, from an order of the Supreme-Court, made at the Kings County Special Term and entered in the-office of the clerk of the county of Kings on the 8th day of July, 1896, directing the issuance of a peremptory writ of mandamus-requiring the defendants to forthwith remove and keep removed the-stand, booth or table in front of Ho.- 14 Broadway in the city of Brooklyn; also, the stands, booths or tables in front of Ho. 26-Broadway-in the city of Brooklyn, as obstructions and incumbrances.
    
      Frank Sperry, for the appellants.
    . Norman S. Dike, for the respondent.
   Per Curiam :

The booth or stand which the writ of mandamus commands the appellants to remove from the street is plainly an obstruction on the-highway and unlawful, unless statutory authority can be found for its maintenance. The existence of such authority is asserted under an ordinance of the common council empowering the alderman of the ward to grant permits to use a portion of the sidewalk for displaying- goods and merchandise. The right of the common council to enact this ordinance is based on the following provision of the city charter:

“ The common council shall have power within said city to make, establish, publish and modify, amend or repeal ordinances, rules, regulations and by-laws not inconsistent with this act, or with the Constitution or laws of the United States or of this State, for the following purposes: * * *

“ 3. To regulate all matters connected with the public wharves and all business conducted thereon, and with all parks, places and streets of the city.”

We are entirely clear that the power to regulate matters connected with and business conducted upon the streets is not a power to permit or authorize any unlawful use of the streets, but merely to regulate lawful uses thereof. There are many temporary uses of the street which for the time obstruct public travel, yet are lawful, such as the right of an adjoining owner to use part of the highway for the deposit of materials to build or repair a structure on his lot; the right to unload a vehicle and deposit its load on the street for the purpose of removing it to the adjacent store. (Callanan v. Gilman, 107 N. Y. 360.)

Ample effect and scope is given to this charter authority when it is held to apply to the regulation of the lawful uses of the highway such as these, and to the speed of vehicles. There is no reason for giving it any greater scope.

We are also clear that, even if there were any power in the common council to authorize any obstruction as here proceeded against, such power cannot be delegated to the individual alderman, but must be exercised by the common council itself.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  