
    The People of the State of New York, Respondent, v. William Hunt, Appellant.
    Court of Special Sessions, City of New York, Appellate Part, Second Department,
    November 24, 1931.
    
      Harold H. Seaton, for the appellant.
    
      James T. Hallinan, District Attorney, for the respondent.
   Per Curiam.

The appellant in this case appeals from judgment convicting him of violating chapter 24, section 13, of the Code of Ordinances of the City of New York.

Chapter 24 is entitled “ Traffic Eegulations,” and article 2, section 13, consists of two subdivisions which are designed to regulate the actions of peddlers on the streets in various parts of the city and during certain hours of the day. The ordinance does not forbid peddling.

The evidence presented to the magistrate falls far short of proving the appellant a peddler, and a finding that he is one is clearly against the weight of the evidence. Enough is disclosed, however, in this testimony for us to conclude that a proper presentation of the case might justify the finding that defendant was a peddler, which fact must be established in order to sustain a conviction under this ordinance. We would, therefore, order a new trial in this case were it not for the insufficiency of the complaint upon which the prosecution was based. This point was not raised in the notice of appeal, but the court must take cognizance of it, because it makes the ordering of a new trial useless.

The complaint accuses the appellant of violating chapter 24, section 13, of the Ordinances, in these words, “ Engage in peddling in the Fifth Ward of the Boro of Queens all such at Beach 56th place Edgemere, N. Y.”

This phraseology does not charge a violation of the ordinance, and should have been dismissed.

Judgment reversed on the law and facts, complaint dismissed, and fine ordered repaid.

All concur; present, Kernochan, P. J., McInerney and Herbert, JJ.  