
    The People of the State of New York, Respondent, v. Lawrence Paradiso, Appellant.
    Court of Special Sessions, City of New York, Appellate Part, Second Judicial Department, Kings County,
    December 27, 1929.
    
      William Kerwick, for the appellant.
    
      Richard S. Newcombe, for the respondent.
   Kernochan, P. J.

This is an appeal from two judgments convicting the appellant (1) of operating a sight-seeing bus without having obtained a public hack driver's license; (2) of operating a sight-seeing bus without having obtained a public hack license. The complaints are violations of_chapter 14 of article 8 of the New York Code of Ordinances.

To sustain the judgments it is necessary to prove that the vehicle the appellant was operating was a public hack. The ordinance (§ 80) defines a public hack as follows: “ A vehicle plying for hire, for which public patronage is solicited upon the street; any vehicle carrying passengers for hire, operating from or in a railroad station or steamship landing.”

In my opinion, there is no evidence to prove: 1. That the vehicle was plying for hire for which public patronage was solicited upon the streets. " )

2. That the vehicle was carrying passengers for hire operating from or in a railroad station or steamship landing.

The necessity for such evidence is pointed out in the case of People v. Cuneen (94 Misc. 509, at p. 523).

Judgment must, therefore, be reversed on the law and the facts and a new trial ordered.

Fetherston, J., concurs.

Herbert, J. (dissenting).

I dissent. The presence of the appellant driving a bus in the public street in which bus there were two persons, called “ passengers ” by the appellant is sufficient, in my opinion, to make a prima facie case. The defense relied solely upon the testimony of the appellant. He says that he was sent to 135th Street and Rockaway Beach Boulevard, some party wanted to hire a parlor car and I was sent out there for them to see the bus,” but he does not explain the absence of this “ party ” who might have assisted the appellant. He says that “ two people asked to take them,” but he fails to produce the “ two people ” to show that they were not passengers for hire. I think this was necessary in view of the fact that I am of the opinion that a prima facie case was made against the appellant.

I vote to affirm.  