
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    November 22, 1912.
    THE PEOPLE v. IRWIN UNTERMYER.
    (153 App. Div. 176.)
    Automobiles—Ordinances governing speed in cities of first class— Posting of signs.
    Under the provisions of the Highway Law, as amended by chapter 374 of the Laws of 1910, cities of the first class may pass ordinances regulating the speed of automobiles, without any condition as to posting signs.
    Appeal by the defendant, Irwin Untermyer, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 6th day of September, 1912, affirming a judgment of the City Magistrate’s Court of the city of New York, convicting the defendant of a violation of chapter 12, section 454, of the Code of Ordinances of the corporation of the city of New York in relation to the speed of vehicles.
    
      Irwin Untermyer, appellant, in person.
    
      Stanley L. Richter, of counsel (■Charles 8. Whitman, district attorney), for the respondent.
   Clarke, J.:

The appellant was convicted of a violation of section 454 of chapter 12 of the Code of Ordinances of the city of New York, which provides as follows: “ Speed of Vehicles. The following rates of speed through the streets of the city shall not be exceeded, that is: Eight miles an hour by bicycles, tricycles, velocipedes and motor vehicles, however propelled, or by passenger and other vehicles drawn by horses or other animals, except that in portions of the city not built up, where the buildings are at least 100 feet apart, a speed of fifteen miles an hour may be maintained.”

The evidence is undisputed that the defendant operated an automobile along Broadway between One Hundred and. Twenty-fourth and One Hundred and Twenty-first streets at a greater rate of speed that eight miles an hour, to wit, thirty miles per hour.

The question submitted is whether the ordinance quoted is in force. This requires consideration of the provisions of the Highway Law in connection with the ordinances. In People ex rel. Hainer v. Keeper of Prison (121 App. Div. 645; affd., 190 N. Y. 315), this court had under consideration the Motor Vehicle Law (Laws of 1904, chap. 538), in connection with the city ordinances adopted on Hovember 18, 1906. In that case the relator had been arrested and held for trial at the Court of Special Sessions for a violation of subdivision 1 of section 3 of chapter 538 of the Laws of 1904. He sued out a writ of habeas corpus upon the ground that the said law did not apply to the city in view of the ordinances adopted. We held that the ordinance was ineffective .and that ‘the law did apply because the act (§ 4, subd. 3) permitted local authorities to thereafter pass ordinances, rules and regulations in regard to the speed of motor vehicles on public highways under three express conditions: First, that such ordinances should fix the same speed limitations for all other vehicles; third, that such ordinances should fix the penalties for violation thereof similar to and no greater than those fixed by such local authorities for violations of the speed regulations for such other vehicles than motor vehicles, and, secondly, on further condition that such city or village shall also have placed conspicuously on each main public highway where the city or village lines crosses the same, * * * signs of sufficient size to be' easily readable by a person using the highway, bearing the words Slow down to-miles ’ ( the rate being inserted) * * * ”; and that as there was no evidence that this condition had been complied with, and as the operation of the ordinance by the provisions of the act was dependent upon the performance of each condition, the failure to perform the condition as to the posting of the signs was fatal.' Accordingly we decided that the relator was properly held for trial under the law and the writ was dismissed.

Thereafter the legislature amended and renumbered the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), by chapter 374 of the Laws of 1910, article 11 thereof being entitled Motor Vehicles.” Section 280 provides: “Except as herein otherwise expressly provided, this article shall be exclusively controlling: 1. Upon the registration, numbering and regulation of motor vehicles, and the licensing and the regulation of chauffeurs; 2. On their use of the public highways, and 3. On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highway; 4. On the punishment for the violation of any of the provisions of this article.”

Section 287: “ Speed permitted. Every person operating a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.”

Section 288: “ Local ordinances prohibited. Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner or chauffeur to whom this article is applicable, any tax * * * or in any other way respecting motor vehicles or their speed upon or use of the public highways; and no ordinance, rule or regulation contrary to or in anywise inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any effect; * * * and provided further that nothing in this "article contained shall impair the validity or effect of any ordinances, regulating the speed of motor vehicles, or of any traffic regulations with regard to the operation of motor vehicles, heretofore or'hereafter made, adopted or prescribed pursuant to law in any city of the first class; provided, further, that the local authorities of other cities and incorporated villages may limit by ordinance, rule or regulation the speed of motor vehicles on the public highways, such speed limitation not to be in any case less than one mile in four minutes, and the maintenance of a greater rate of speed for one-eighth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent, and on further condition that each city or village shall have placed conspicuously on each main public highway where the city or village line crosses the same and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words, £ City of -’ or £ Incorporated Village of ——,’ 'Slow down to-miles ’ (the rate being inserted), and also an arrow pointing in the direction where the speed is to be reduced or changed, and also on further condition that such ordinance, rule or regulation shall fix the punishment for violation thereof, which punishment shall, during the existence of the ordinance, rule or regulation, supersede those specified in subdivision two of section two hundred and ninety of this chapter, but, except in cities of the first class, shall not exceed the same. 'Official copies of all local ordinances passed under the provisions of this subdivision shall be filed with the Secretary of State at least thirty days before they shall respectively take effect, and all such ordinances shall be printed in pamphlet form and issued at regular intervals by the Secretary of State.”

■Section 290-: “Punishment for violation; procedure. * * * 2. The violation of any of the provisions of section two hundred and eighty-seven of this article (that is, the general speed provision, that a fate of speed in excess of thirty miles shall be presumptive evidence of driving at a rate of speed which is not careful and prudent) shall constitute a misdemeanor punishable by a fine not exceeding one hundred dollars." * * * 6. Upon a third or subsequent conviction of a chauffeur for a violation of the provisions of section two hundred and eighty-seven, or an ordinance, rule or regulation regulating speed of motor vehicles under section two hundred and eighty-eight, the Secretary of State, upon the recommendation of the trial court, shall forthwith revoke the license of the person so convicted and no new license shall be issued to such person for at least six months after the date of such conviction nor thereafter except in the discretion of the said Secretary of State.”

The point raised here is that-as it is not shown that signs were posted, in fact it is conceded they were not, the local ordinance does not apply, the magistrate had no jurisdiction, and the speed limit is, therefore, covered by section 287, that is, roughly speaking, thirty miles an hour. The answer is that the act expressly provides that nothing in this article shall impair the validity or effect of any ordinances, etc., adopted and prescribed pursuant to law in any city of the first class.

The appellant claims that, notwithstanding said provision, the grammatical construction of the section compels the condition in regard to the posting of signs, still required in other cities and incorporated villages, to be also applied to cities of the first class. I do not think so. The statute is awkwardly phrased, but I think it clear that special provision has been made for cities of the first class permitting them to pass such ordinances as they please, and that there is no condition in regard to posting signs. If this is not so there is no speed limit in the city of Hew York except that provided by the general law. I think the act was modified directly in view of the former decisions. It was recognized that in the enormous territory of the city of Hew York the posting of sighs would be extremely difficult, if not practically impossible, and, therefore, the provision eliminating cities of the first class from the limitations of the law in respect to traffic ordinances was made comprehensive and exclusive.

It follows that the judgment appealed from should be affirmed.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment affirmed.  