
    (91 Misc. Rep. 511)
    HARDING v. CAVANAUGH.
    (Onondaga County Court.
    August, 1915.)
    1. Municipal Cobpobations <@=>706—Streets—Automobile Accident—Negligence—Question for Jury.
    Where, in an action for damages to plaintiff’s automobile from colliding with a horse attached to a wagon at an unlighted street intersection on a dark night, there was evidence that plaintiff was driving at a rate of speed not exceeding five or six miles on hour with the lamps lighted, that on approaching the intersection he looked both ways, but did not see any team or vehicles, and that he -did not see the horse until it was within about two feet of the machine, and then used every effort to stop his car, but was uliable to do so before the accident, the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence were for the jury.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. <@=>706J
    2. Municipal Corporations <@=>662—Streets—Regulation of Vehicles— Validity.
    Second-Class Cities Law (Consol. Laws, c. 53) § 30, vests in the common council the exclusive power to regulate the use of vehicles on the streets; and hence a traffic regulation adopted by the commissioner of public safety, providing that all vehicles shall exhibit, between one hour after sunset and one hour' before sunrise, a white light in front and a red light in the rear, was unauthorized and void.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1433; Dec. Dig. <@=>662.]
    <g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from Municipal Court of Syracuse.
    Action by William H. Harding against Daniel B. Cavanaugh. From judgment for plaintiff, and denial of new trial, defendant appeals. Reversed, and new trial ordered.
    Gannon, Spencer & Michell, of Syracuse, for appellant.
    Goodelle & Harding, of Syracuse, for respondent.
   COVILLE, J.

From the evidence in this case the jury could find that the plaintiff was driving his automobile southerly on the westerly side of University avenue on the evening of October 18, 1912, at a rate not exceeding five or six miles an hour, and with the oil lamps in front lighted; that it was very dark, and that there were no street lights lighted at the intersection of University avenue with Madison street, which runs east and west crossing the avenue at right angles; that upon approaching the intersection he looked both ways upon Madison street, but did not see any team or conveyance; that just past the line of the curb of Madison street he saw the front part of a horse as it came in range of the oil lamps of the automobile and about two feet in front of the machine, it being so dark that he could not see the wagon; that plaintiff’s automobile struck the horse and was damaged by the collision; and that the plaintiff used every effort to stop his car after the horse became visible, but was unable to do' so. Under these facts, the questions of the defendant’s negligence and the plaintiffs freedom from contributory negligence were properly submitted to the jury, and its verdict was not contrary to the weight of evidence.

I am of the opinon, however, that the judgment should be reversed by reason of the admission in evidence over the defendant’s objection of a traffic rule or regulation, adopted by the commissioner of public safety of the city of Syracuse, and which reads as follows:

“All vehicles shall exhibit (luring the period from one hour after sunset to one hour before sunrise, on the left side of the vehicle, a white light visible within a reasonable distance in front of such vehicle, and a red light, visible within a reasonable distance, in the rear thereof.”

It will readily be perceived that under the circumstances of this case the admission of this evidence was of great importance to the plaintiff, and the error in its reception, if any, was substantial. If this rule or regulation could be considered as a valid municipal ordinance, it would, of course, be competent evidence to be considered by the jury as bearing upon the negligence of the defendant. Fluker v. Ziegele Brewing Co., 201 N. Y. 40, 93 N. E. 1112, Ann. Cas. 1912A, 793. Such ordinances seem to be admissible in negligence cases upon the theory that they have the effect of statute law within the territory affected, and a violation thereof is at least some evidence of negligence, and for the further and more tangible reason that:

“Every person pursuing his lawful affairs in a lawful way has a right to assume, and act upon the assumption, that every other person will do the samo thing.” Jetter v. New York & Harlem R. R. Co., 2 Keyes, 154, 163.

On principle, this reasoning ought not to^ be extended to cases of rules and regulations which are made without formality or publicity. There seems to be no decision of our courts at all decisive upon the question of the authority of the commissioner of public safety to' adopt a rule or regulation of this kind. By section 30 of the Second-Class Cities Law the legislative power of the city is expressly vested in the common council, and that body is given authority to enact ordinances for the government of the city, for the safety and welfare of its inhabitants, and for the protection and security of their property. Clearly this gives the common council authority to enact ordinances of the general character of the one in question, and an ordinance of this Ivind, so far-reaching as to apply to all vehicles upon the city streets, would seem to be legislative in its nature, and therefore exclusively within the power of the common council.

Unquestionably the Legislature could have given this power to the commissioner of public safety. Wilcox v. McClellan, 185 N. Y. 9, 77 N. E. 986; People ex rel. Cox v. Special Sessions, 7 Hun, 214. However, the common council is the body naturally and ordinarily vested with such authority, and under section 30 that authority remains in it, unless clearly taken away and vested in some other person or body. Section 131 of the above statute provides that the commissioner of public safety shall have supervision and control of the government, administration, and discipline of tire police department, fire department, building department, and health department, and shall possess and exercise fully and exclusively all powers and perform all duties pertaining to the government, maintenance, and direction of said departments; and section 133 provides that:

He “shall make, adopt and enforce such reasonable rules, orders and regulations, not inconsistent with law, as may be reasonably necessary to affect a prompt and efficient exercise of all the powers conferred and the performance of all duties imposed by law upon him 'or the department under his jurisdiction.”

His office is principally administrative, he is nowhere expressly given authority to enact general ordinances of a legislative nature and in fact the only jurisdiction given to him over the city streets and the persons thereon must apparently be inferred from the fact that he is given control of the police department, whose primary duty is to enforce, rather than make, laws and ordinances. No formalities are provided for the adoption of such rules and regulations as he may make or for their record or publication.

As stated above, it is clear that under section 30 the common council is given authority to enact ordinances of this character, and it is reasonable to assume that the Legislature did not intend that the ordinance making power of the common council and the commissioner of public safety should conflict. The logical and practical interpretation of section 30 and section 133 is to hold that the common council shall make all ordinances “for the safety and welfare of its inhabitants and the protection and security of their property,” etc., and that the commissioner of public safety shall enforce the same, and shall also make and enforce all such rules and regulations of an administrative nature as may be reasonably required for the enforcement of such ordinances and of the laws applying to his department.

The expression found in section 42 in relation to ordinances of the commissioner of public safety is not inconsistent with this interpretation. It may be that the common council has in some way formally adopted the rules and regulations of the commissioner of public safety and practically made them its own ordinances. Such fact, if it exists, is not in evidence, and judicial notice could not be taken of it. I therefore hold that the admission in evidence of this rule or regulation was error, for which the judgment must be reversed.

Judgment and order denying motion for a new trial reversed, and a new trial ordered in the Municipal Court on September 10, 1915, with costs to the appellant to be adjusted in the subsequent judgment in said court.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.  