
    The City of New York, Respondent, v. Benjamin B. Marco and Julius L. Marco, Appellants.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Municipal corporations — Powers and exercise of governmental functions— Subjects of municipal regulation and validity of ordinances . and by-laws — Weignts and measures.
    A city ordinance passed pursuant to the authority of the Legislature has the force of law and is as obligatory as if enacted by the Legislature.
    The Legislature may authorize a municipality to pass ordinances imposing new and superadded penalties for acts already made penal by statute.
    Section 388 of the ordinances of the city of New York, passed by virtue of section 49 of its charter, inhibiting the sale of coal “ at or for a greater weight or measure than the true measure thereof,” does not conflict with the statute (L. 1900, eh. 327, § 150) which inhibits the sale of coal “ at less than 2,000 pounds by weight to a ton;” and, the purpose of both the statute and ordinance being to provide for the protection of the public, the ordinance should be sustained.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of The 'Bronx.
    William C. Relyea, for appellants.
    Francis K. Pendleton (Herman Stiefel and William J. Millard, of counsel), for respondent.
   MacLean, J.

At a prior term of this court, in October, 1907, this cause, brought to recover a penalty for the delivery of an under weight of coal, was reversed and remanded on the ground that the evidence was insufficient to justify the recovery of a penalty. 107 N. Y. Supp. 100.

According to the record of the present appeal from the judgment for ten dollars and costs, rendered in favor of the plaintiff upon the second trial,

“It is hereby stipulated that the record of the first trial shall constitute the record upon the second trial of this action with the following exceptions:

“ 1. The defendant waives each and every exception taken upon said trial except as to the constitutionality, validity and reasonableness of the ordinance in question.

“ 2. It is admitted that the weighmaster kept a book, the entries in which conform to the statutory requirements.

“ 3. The coal when weighed on the official scales was found to be 3,900 pounds.

“ 4. It is hereby expressly stipulated and agreed by the parties hereto that the only question at issue in this action is as to the constitutionality, validity and reasonableness of the ordinance upon which this action is based, all other questions, objections and exceptions being hereby expressly waived.”

In view of the evidence and the stipulation in the record, it is quite unnecessary to determine academically the validity or invalidity, as a whole, of the particular ordinances upon which this action is based, as the facts of the present case disclose neither inconsistency nor conflict with the statute with which it is claimed the ordinances conflict, the shortage in weight being now conceded to have been 100 pounds of coal in an attempted delivery of 4,000 pounds, an excess of 40 pounds of the amount of shortage allowed by the statute. Laws of 1900, chap. 327, § 150, cited infra.

By section 17 of the Greater Hew York charter, the legislative power of the city of Hew York is “Vested in one house to be known and styled as the board of aldermen of the city of Hew York.”

Section 49 of the charter provides: “ The board of aldermen shall have power to make, amend and repeal ordinances, rules, regulations and by-laws not inconsistent with this act, or with the constitution and laws of the United States or of this State, for the following purposes:

“ 1. In relation to the inspection and sealing of weights and measures, and the keeping in use of proper weights and measures by vendors.

“ 2. In relation to the inspection, weighing and measuring of firewood, coal, hay and straw and the cartage of the same.”

And section 44 provides for the enforcement of its ordinances “by such fines, penalties, forfeitures and imprisonment as may by ordinance or by law be prescribed.”

Section 388 of the ordinances provides: “Ho person shall sell or offer for sale in any market or in the public streets or in any other place in the city of Hew York any fruits, vegetables or berries in crates, baskets or other measures, or any butter in prints, or any ice or coal or other fuel at. or for a greater weight or measure than the true measure thereof; and all ice, coal, coke, meats, poultry and provisions (except vegetables sold by the head or bunch) of every kind, sold in the streets or elsewhere in the city of Hew York, shall be weighed or measured by scales, measures or balances, or in measures duly tested and stamped by the Inspector or Deputy Inspectors of Weights and Measures; provided that poultry may be offered for sale and sold in other manner than by weight, but in all cases where the persons intending to purchase shall so desire and request poultry shall be weighed as hereinbefore provided.”

And part XVI of the ordinances provides: “Whenever in the foregoing ordinances no specific penalty is provided for the violation of any such ordinance, the penalty for the violation thereof shall be the sum of ten dollars ($10).”

It is contended that these provisions are in conflict and are inconsistent with a State statute, Laws of 1900, chap. 327, § 150, which provides as follows: “Attempting to deliver or sell less than a legal ton. In all transactions relating to the sale or delivery of coal, two thousand avoirdupois pounds in weight shall constitute a legal ton. A person, firm or corporation, in a city of the first or second class attempting to sell or deliver less than two thousand pounds by weight to a ton of coal, or a proper proportion thereof to quantities less than a ton, shall be liable to a penalty of not exceeding fifty dollars, provided that in all cases thirty pounds to a ton shall be allowed for the variation in scales and wastage.”

The purpose of the ordinance * * * is the protection of the public by seeing that the measure in weight and bulk by which sales and purchases are made corresponds with the standard” (People ex rel. Gould v. City of Rochester, 45 Hun, 102, 104, 105), herein the true weight; and this ordinance, passed pursuant to the authority of the Legislature, has the force of law and is obligatory as if enacted by the Legislature. City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276, 280. That the ordinance in question superadded a penalty for acts penal by statute does not render the ordinance invalid, as “ a municipal government may be authorized to pass ordinances imposing new and superadded penalties for acts already penal by the laws of the state.” City of Brooklyn v. Toynbee, 31 Barb. 282, 284. See also Rogers v. Jones, 1 Wend. 237, 261. The ordinance therein not appearing to be in conflict with a statute upon the same subject, and in accord with the general purpose and reasonably so, when as here the purpose is to provide for the protection of the public at large, both statute and ordinance must be sustained. City of Rochester v. West, 164 N. Y. 510, 514. The judgment should, therefore, be affirmed.

Gilderseebve, J., concurs.

Bischoff, J.

(concurring). The ordinance does not conflict with the statute. The obvious purpose of the first is to inhibit the sale of coal without reference to measure at more than its true weight; that of the statute, to inhibit the sale of coal hy the ton, or part of a ton, at less than the rate of two thousand pounds to the ton, the standard measure; and, since the stipulation in the record waives any question of the sufficiency of. the evidence to show the defendants’ sale of the coal delivered, above its true weight, the judgment for the plaintiff must be affirmed.

Judgment affirmed, with costs.  