
    Thomas Donovan, Plaintiff, v. The Town of New Windsor and Others, Defendants.
    Supreme Court, Orange County,
    September 19, 1928.
    Municipal corporations —■ ordinances —• ordinance prohibiting transportation of garbage into town is void — injunction pendente lite granted.
    This is an action to restrain the defendant from enforcing an ordinance which prohibits the bringing of garbage into the defendant town. The ordinance is unreasonable and invalid in that it prohibits rather than regulates the carrying of garbage into the defendant town, and, therefore, plaintiff’s motion for an injunction pendente lite is granted.
    Motion for an injunction pendente lite in an action to restrain the town of New Windsor from enforcing the following ordinance:
    “ Be it resolved, that the bringing into the Town of New Windsor, Orange County, New York, of decayed and spoiled fruit and refuse from households, restaurants and other eating houses, be, and the same is hereby prohibited, and that a violation of this resolution shall constitute a misdemeanor. This resolution shall become effective September 1st, 1925.”
    
      Stanley E. Johnson, for the plaintiff.
    
      Peter Cantline, for the defendants.
   Tompkins, J.

The ordinance in question is unreasonable and oppressive because it prohibits rather than regulates the carrying of refuse into the town of New Windsor. It is a well-known fact that household refuse, decayed fruit and garbage may be carried in sealed vehicles or containers without being in any wise offensive or a nuisance. The town board has power, by ordinance, to reasonably regulate the transportation of such materials in or through the town, but this ordinance is prohibitive rather than regulatory and it is for that reason, in my opinion, invalid and unenforcible.

The plaintiff’s motion for an injunction pendente lite is granted, with ten dollars costs to the plaintiff to abide the event.  