
    The City of New York, Respondent, v. George G. Reesing and Frederick Pitney, Copartners, doing Business under the Firm Name and Style of Reesing & Pitney, Appellants.
    
      (Jobs standing in front of hotels {not at hack stands) in the city of New York must pay a license fee of twenty-fine dollars in addition to the three dollars license fee.
    
    Livery stable keepers, doing business in the city oí New York, who make an agreement with the proprietor of a hotel in that city to supply carriages or cabs to that hotel and who, with the written consent of such proprietor, but without the consent of the city, keep a number of cabs standing in front of the hotel awaiting passengers, must, in addition to the license fee of three dollars imposed on special hacks by sections 456 and 457 of the revised ordinances of the city of New York, pay for each of such cabs the additional fee of twenty-five dollars, imposed pursuant to sections 12 and 13 of the ordinance approved May 22, 1899, upon hacks using, with the written consent of the owner or lessee of the abutting premises, a public street as a private hack stand.
    The enactment of the ordinance of May 22,1899, was within the power of the municipal legislature.
    Appeal, by permission, by the defendants, George G. Reesing and another, copartners, doing business under the firm name and style of Reesing & Pitney, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of May, 1902, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of the plaintiff, and also (as stated in the notice of appeal) from a judgment of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of May, 1902, upon said order of affirmance.
    
      William J. Fcmrvmg, for the appellants.
    
      Henry Clark Johnson, for the respondent.
   Patterson, J.:

The question upon which this case turns is a very narrow one, and relates only to the liability of the defendants to pay a fine by reason of their violation of a city ordinance. They are livery stable keepers, and own and use in their business carriages and cabs which are hired for public use. They made an agreement with the proprietor of the Hotel Imperial in the city of New York to supply carriages or cabs to that hotel and to pay the proprietor thereof ten per cent of the gross receipts. With the written consent of thas proprietor, they keep from six to eight cabs standing in front of hit premises awaiting passengers from the hotel. They have paid a license fee of three dollars each for twenty-five cabs, including those which stand in front of the Hotel Imperial, that being the license' fee chargeable upon what are called special hacks or cabs. While the defendants have the permission of the proprietor of the hotel to stand in front of his premises and he shares in profits with them, they have not the permission of the city to use the street in front of the hotel as a cab stand.

It has been sought on this appeal to have this court pass upon the right of a hotel proprietor to maintain a cab service in the street in front of his premises, but that question is not involved in this appeal, and its determination is not necessary to the ascertainment of the defendants’ liability to pay the fine which has been imposed upon them. The city contends that the defendants have no right to use the street in front of the hotel as a cab stand unless they pay a license fee of twenty-five dollars for each cab and receive a permit. By section 453 of the revised ordinances of 1897 of the city of New York, which is still in force, it is provided that the owner or driver of any hackney coach or cab which shall stand waiting for employment at any other place than as herein provided ” shall be liable to a fine of ten dollars, to be imposed by the mayor or his first marshal, and to be sued for and recovered by the attorney for the corporation for the use of the city.

It is claimed by the plaintiff that the defendants, having no right to occupy the street in front of the Hotel Imperial with their cabs, except as stated, were liable to the fine mentioned in section 453, and such a fine was imposed by the chief of the bureau of licenses, the successor to the first marshal to the mayor. The fine not being paid, this action was brought on an agreed statement of facts, judgment was rendered in favor of the plaintiff in the Municipal Court, and on appeal to the Appellate Term of the Supreme Court was affirmed. By leave of the Appellate Term an appeal was taken by the defendants to this court.

The main subject of consideration is the right of the defendants to occupy, with their cabs, a part of the public street while waiting for employment, without paying a license fee of twenty-five dollars as is required by the provisions of the ordinances of the city of New York.

In the agreed statement of facts it appears that, under the municipal regulations, the hack system of New York city has for many years practically divided all cabs, carriages, coaches and such vehicles as are kept for hire into two classes, known and designated as public hacks and specially licensed or special hacks; that public hacks are allowed to use only the designated puhMo hack stands while waiting for employment; that specially licensed or special hacks do not use the designated public hack stands while waiting for hire, but stand in livery stables or in front of certain premises such as hotels, etc., by virtue of a special permit; and the class of special hacks is restricted to the carrying of passengers from the stables or premises in front of which they stand; that a special or private permit for certain specified stands is given by the executive department of the city government, but only with the consent of the. owner or lessee of said premises. It is admitted in the statement of facts that the premises occupied by the Hotel Imperial il are not enumerated ” as one of the regular designated places where public hacks may stand while waiting for employment, and further, that the defendants did not use nor intend to use any of the regular designated public hack stands of the city. Section 456 of the revised ordinances of 1897 of the city of New York provides that the proprietor of any hackney coach or carriage or cab who does not intend to come upon and use the public stands with such hackney coach or carriage or cab shall, at the time of applying for a license of the same, state in writing to the mayor such intention, and thereupon a special license may be granted in the discretion of the mayor. Section 457 provides that for every such special license granted by virtue of the article containing these sections there shall be paid for every coach or carriage five dollars, and for each cab three dollars.

The defendants’ licenses for their cabs were granted under the terms of these two sections. Sections 456 and 457 relate merely to a license fee to be paid for a hackney coach, cab or carriage which it is not intended by the owner shall come upon or make use of the public stands. Those sections do not relate to a license fee to be paid by the proprietors of carriages or cabs that use the public streets as standing places while waiting for employment. It is provided in section 12 of the ordinance approved May 22, 1899, that the owner of any hack not intending to use the public stands and having the written consent of the owner or lessee of the premises, in the discretion of the mayor or the chief of the bureau of licenses, may be specially licensed and permitted to use temporarily a portion of the street in front of such premises as a stand, and shall be confined to carrying passengers from said premises. Section 13 of that ordinance provides that the owner of hacks specially licensed shall, in addition to the lawful fees hereinbefore provided, pay annually an additional fee of twenty-five dollars for each hack allowed any stand other than a public hack stand, and no other than a licensed hackman shall come upon or use the said stand. These sections of the ordinance not only relate to the payment, of a license fee but to the regulation of the streets, and were passed conformably to authority contained in sections 50 and 51 of the Greater New York charter which gives to the municipal legislature of the city the power to regulate the use of the streets and sidewalks by foot passengers, animals or vehicles and to provide for the licensing and otherwise regulating the business of hackmen and cabmen, etc. The charge of twenty-five dollars for the privilege conferred by sections 12 and 13 of the ordinance of 1899 is in addition to the lawful fees for the special license.

If the cab proprietor desires to use his vehiclés without going upon the public stands, he must pay a license fee of three dollars. If he wishes to avail himself of the privilege of using the streets as-a private stand under the permission and provisions of sections 12- and 13 of the ordinance of 1899, for that additional right and privilege he is required to pay a fee of twenty-five dollars for each hack allowed so to stand. That does not convert the private hack stand into a public hack stand. As is well remarked by the counsel for the city, all that the ordinance does or attempts to do is to provide separate stands where each of two classes of licensed hacks may stand and to forbid each to use the stand provided for the other.

We see nothing in the requirement that the additional license fee of twenty-five dollars shall be paid for the privilege of a private stand, beyond the authority of the municipal legislature to enact. The right and the power of the city to pass such ordinances cannot be questioned. A case is not presented of an ordinance authorizing the establishment of a hack stand in front of private premises with ■ out the consent of the owner or the lessee. The privilege of using the private hack stand, according to section 12, can only be with the consent of the owner or lessee of the premises. But the consent of the owner to hacks standing in front of his premises does not exempt the hack proprietor from the payment of the license fee required by the ordinance.

It is admitted in the statement of facts that the defendant’s cabs stand in front of the Hotel Imperial without the payment of the twenty-five dollars license fee, hence they stand there awaiting employment at a place at which they are not authorized to stand, without the payment of the license fee. So doing, the owner is brought within the provision of section 453 of the revised ordinances of the city of Hew York and is liable to the fine provided for in that section, there being no permit of the city given as required by the ordinance.

The determination of the Appellate Term should be affirmed, ■ with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Determination of Appellate Term affirmed, with costs.  