
    The People, Resp’ts, v. Orson M. Wilson, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Municipal corporations—Ordinances—Streets.
    Provisions in a city charter to the effect that the common council should have the powers of commissioners of highways with power to lay out, make and open streets; cause the same to be graded, paved or repaired and prescribe of what materials, “ and for the purposes of exeucting the powers conferred * * the common council shall have full power to make, establish * * * ordinances,” authorize the passage by the common council of an ordinance prohibiting any one from drawing or transporting a load weighing from two and a half to five tons over any macadamized, paved or top dressed street in a vehicle having a tire less than four inches wide on its wheels.
    2. Same—Proof of ordinance.
    The city clerk testified that he knew the wide tire ordinance and produced a copy thereof, with certificates attached, certifying to its passage, record, correctness and due publication, which iwas received in evidence without objection. Held, a sufficient proof of the ordinance and its record.
    3. Same—Proof of weight of load.
    One who has handled blues tone and been in that business'for twenty years, and has seen the load in question, is competent to testify as to the weight of a load of bluestone rubbish.
    4. Same—Evidence of violation.
    Proof that defendant was seen with his load on the avenue in question and on the same day was seen with his load on another street is sufficient to prove that he was drawing or transporting the load over said avenue.
    Appeal from a judgment of the Ulster county sessions, affirming judgment of conviction and sentence of the defendant by the recorder’s court of the city of Kingston.
    
      William Lounsbery, for app’lt; G. D. B. Hasbrouck, for resp’ts.
   Landon, J.

The defendant was convicted before the recorder of the city of Kingston of the violation of an ordinance of the city prohibiting any person from drawing or transporting a load or burden weighing from two and one-half to five tons over any •macadamized, paved or top dressed street of the city in any vehicle having a tire less than four inches wide on its wheels.

The defendant urges that the charter of the city does not authorize the making of such an ordinance. The power is not expressly conferred, but the charter, chap. 150, Laws 1872, § 91, provides that “ The common council shall have the powers and discharge all the duties of commissioners of highways in said city,” and are vested with power “ To lay out, make and open streets ” -* * * “and cause the same to be repaired,” § 93. “ To cause any street * * * to be graded, paved or repaired,” § 98, and to prescribe “ of what materials.” Section 100. “ It shall be the duty of the superintendent of streets * * * under and subject to the control of the common council, to act as overseer of highways, and take general supervision and charge of all highways and streets.” Section 51. “ And for the purposes * * * of executing powers conferred upon the common council or upon the city by this act or otherwise, the said common council shall have full power to make, establish * * * ordinances.” Section 33, subd. 51.

The specific grant of powers for the making, grading and repairing streets, and for their care and superintendence, coupled with the power to make such ordinances for the purpose of executing such powers, vests in the common council the power to make such ordinances as shall be reasonable for the purpose. It is reasonable to protect paved streets from being crushed and ruined by loads of enormous weight borne upon vehicles with wheels of narrow tires, which cut through the pavement, when a broader tire will bear the load without causing such injury. It is reasonable that the carrier of heavy loads should so exercise his own rights as not injuriously to affect those of others. Such an ordinance was upheld in People v. James, 16 Hun, 426, and we concur in the views there expressed upon the subject.

The charter requires that an ordinance “ shall be published at least twice in the two newspapers published in said city, designated for such purpose by the common council, before it shall take-effect.” The city clerk testified as follows: “Am city clerk, and was so during the year 1890 ; it is my duty to keep the minutes of the common council; know the wide tire ordinance (a copy produced and recognized, and put in evidence, marked A.)” Exhibit A consists of a copy of the ordinance with such certificates appended thereto, made by the city clerk, certifying to its passage, record, correctness, and due publication, as the charter requires to be entered of record upon the minutes or records of the common council, which “record or a copy thereof, certified by the clerk of said city, shall be presumptive evidence in all courts and places * * of the due passage of such ordinance, * * *■ and of its having been duly published.” Section 33, subd. 51. The criticism that the certificate presented was not a certificate of a copy of the record, but was the certificate which should be entered of record, and that the whole record itself or a certified copy of it should be produced, would, undoubtedly, be valid, if the ordinance had not been proved by common law evidence. The city clerk as a witness produced what we may assume was a transcript of the record, and it was read in evidence without any objection or question.

The record contained the statutory certificate of the due publication of the ordinance. The statute makes the record itself proof of the passage and publication of the ordinance. The record may be proved like any other fact by common law evidence. Secondary evidence is admissible. at common law, unless objection is made to that mode of proof. None was made here, and hence-the record was competently proved by producing and reading a copy of it

The weight of the load of blue stone rubbish was shown by the testimony of a witness who testified that he had handled blue-stone and been in the blue stone business for twenty years, that he saw the load in question; he gave an estimate of its dimensions, and testified that in his judgment its weight was about four tons. The objection was taken that the opinion of the witness was not competent ■ or proper. We do not think the objection tenable. Under the circumstances it seems to have been the best evidence obtainable. Clearly the witness was qualified to make an approximate estimate; that is to say, he knew something about the weight of that load, and knew more than the inexperienced observer. There was no other way in which he could express more accurately what he knew respecting its weight, than by giving his opinion or estimate o£ it. It was competent for him to testify to what he knew and to do so in the most accurate form in which he could express it. Quantities, values, times, distances, and other measurable subjects, must often be measured in this way because no better exists. Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243; 14 St. Rep., 783; Harpending v. Shoemaker, 37 Barb., 270; Smith v. Gugerty, 4 id., 614; Townsend v. Brundage, 6 Thomp. & Cook, 527; McDonald v. Barton, 1 id., 12.

A witness testified that he saw the defendant on Union avenue with his team of horses and wagon, having on the load of blue stone rubbish; and another witness testified that he saw him on the same day with the load on another street. This testimony is criticised as not showing that the defendant was “ transporting, carrying or drawing the load over ” Union avenue. To conclude from this testimony that the defendant transported the load over the street on which he was seen with it is a reasonable and not a violent inference. We do not think the other objections require comment

The judgment should be affirmed.

Learned, P. J., and Mayham, J., concur.  