
    The City of New York, Respondent, v. George C. Reesing et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1902.)
    2Tew York city — Construction o£ ordinances relative to hacks in front of a hotel.
    Section 453 of the revised ordinances of the city of New York, imposing a fine of ten dollars on the “ owner or driver of any hackney coach or cab, which 'Shall stand waiting for employment at any other place than as herein provided ” (meaning thereby public hack stands and in front of private premises upon consent of the owner and a special permit from the city), is valid.
    In view of it, liverymen, who by agreement with and the consent of the proprietor of a hotel in the borough of Manhattan but without permission from the city of New York keep cabs in front of his hotel for hire by his guests, are subject to the fine, where, although they have paid the usual yearly license fee of three dollars for each cab as a “ special hack ”, they have not paid the additional special license fee of twenty-five dollars required by sections 12 and 13 of the general ordinances of the city, approved May 22, 1899, “ for each hack allowed any stand other than a public hack stand ”.
    Said sections 12 and 13 are valid although they permit the temporary use by hacks or cabs of a portion of the street in front of the hotel, as the city has power to regulate the number of them which shall stand in front of a hotel.
    The payment of the fee of twenty-five dollars does not necessarily carry to the licensee the exclusive use of the stand.
    The proprietor of a hotel in the borough of Manhattan has no more right to use the street in front of his hotel, as a carriage stand for hire than have the liverymen and hence although the latter obtain the consent of the former to such use they still lack the consent of the city — and for that consent it may subsequently exact a license fee.
    Under such an agreement the liverymen are not the agents of the ■hotel proprietor in carrying on the carriage service of the hotel and his consent does not carry to them whatever right he may have to use the street as a carriage stand.
    Appeal by the defendants from a judgment rendered In favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan.
    The general ordinances of the city of New York referred to in the opinion are as follows:
    “ § 12. None but licensed hacks shall use the designated hack stands in the city. The owner of any hack not intended 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 said premises as a stand, and shall be confined to carrying passengers from said premises.
    
      “ § 13. The owner of hacks specially licensed shall, in addition to the lawful fees hereinbefore provided, pay annually an additional fee of $25 for each hack allowed any stand other than a public hack stand, and no other licensed hackman shall come upon or use said stand.”
    The revised ordinance referred to in the opinion is, so far as material, as follows:
    
      “ § 453. 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 to the corporation for the use of the city.”
    William J. Fanning, for appellants.
    George L. Rives, Corporation Counsel (A. F. Cosby, of counsel), for respondent.
   Gildersleeve, J.

Upon an agreed state of facts, a justice of the Municipal Court gave judgment against the defendants for ten dollars, the amount of a fine imposed upon them by the chief of the bureau of licenses, for a violation of section 453 of the revised ordinances of the city of Few York, and the costs of the action. From that judgment the defendants have appealed. The essential facts are, that the defendants are liverymen in the borough of Manhattan, and keep cabs for hire. Under an agreement with the proprietor of the Hotel Imperial, in this borough, by which they supply carriage service to the hotel and its patrons and pay the proprietor ten per cent, of their gross receipts, they, with the written consent of the proprietor of the hotel, keep from six to eight cabs standing in front of the hotel while waiting to be hired by the guests of the house. The period of waiting for employment averages from fifteen to twenty minutes for each cab. The defendants have paid the city a yearly license fee of three dollars each for .twenty-five of their cabs, as “ special hacks.” These cabs stand in front of the hotel, but without the permission of the city, and defendants refuse to pay an additional special license fee of twenty-five dollars for each of the cabs in question for the privilege of standing before the hotel, in accordance with the requirements of sections 12 and 13 of the general ordinances of the city; and for violating the provisions of section 153 of the revised ordinances, the fine for which the judgment was given by the justice was imposed. The plaintiff claimed to recover one dollar, in addition to the fine of ten dollars, as a fine imposed for violating the general ordinances which took effect May 22, 1899, but the justice did not allow it. The defendants justify their refusal to pay the fine of ten dollars on the ground that the ordinance under which it was imposed, is invalid, and on the further ground that, by virtue of the agreement between them and the proprietor of the hotel, they became his agents in carrying on that branch of his business, and that by his written consent, permitting their cabs to occupy the street in front of the hotel, they became entitled to the same privileges as the proprietor himself would he entitled to in case he chose to maintain a private carriage service for the purposes of his business, or which would be enjoyed by persons conducting the business of grocers or other dealers in goods, requiring the use of many wagons in receiving and delivering them; and that, inasmuch as such persons do not pay any license, no more should the defendants. The defendants further insist that by the true construction of sections 12 and 13 of the general ordinances, approved May 22, 1899, the license fee of twenty-five dollars is only required from one who seeks the exclusive use of such a stand as the defendants have occupied in front of the Hotel Imperial, and that as they do not claim any exclusive right to this stand, but only a right common to all other persons, they are not liable to pay any special license fee; that, although the city may establish stands for hacks around public parks and squares, there is- no authority in the municipality, independently of the consent of the owner, to grant a hackstand in front of private property, and that this consent is the sole source of the city’s authority in such cases; that, if the owner does not avail himself of the right to grant a monopoly in the use of the street in front of his premises to one paying a special license of twenty-five dollars to the city, he shall, still, not be deprived of the use of the street fronting his premises. The further position is taken by the defendants, that the city has no power to grant the exclusive use of a street to any one, and that, therefore, if the defendants had paid the twenty-five dollars demanded, they would not have acquired any greater right than they have under their contract with the hotel.

We think the true construction of sections 12 and 13, of the general ordinances of May 22, 1899, is that the special license fee of twenty-five dollars, required to be paid for the privilege of standing in front of private premises, with the owner’s consent, does not necessarily carry with it the right to the exclusive use of such a stand. But, if it were otherwise, the ordinance would not, for that reason, be invalid. That the right to grant such an exclusive use of a portion of a street for a cabstand is beyond the power of the city is certainly not an obvious proposition. There must be some Emit to the' number of carriages which shaE be allowed to stand in front of a hotel, and it would be manifestly unwise and unjust to permit as many Everymen as were willing to pay the Ecense to occupy such a stand. In the case of, a large house, where the demands for carriages were numerous and the profit remunerative, the result of granting unlimited permits would be continual strife and turmofi between carriage drivers — endangering the peace, obstructing the street and impairing the value of the stand for any one. This is one of those incidents of administration which must be intrusted to the wise judgment of the officer who is charged with the execution of the ordinance in question. People ex rel. Thompson v. Brookfield, 6 App. Div. 398, 403.

Metropolitan Ex. Co. v. Newton, 4 N. Y. Supp. 593, cited by defendants’ counsel, is not in point here. There the sole question was whether a party could lawfully inclose with a fence part of a street, to the complete exclusion of the public, even under the protection of a resolution of the common council of the city; and the court held, of course, that the council had no power to- authorize the' entire appropriation of a street to private use. There is no analogy in that case to the one at bar.

The relation of principal and agent did not arise under the agreement in question. In that, the parties contracted with one another as principals, on equal terms, the defendants for the right to the patronage of the hotel, and the proprietor of the hotel for a share of the receipts from that patronage. In connection with this agreement the hotel proprietor necessarily permitted the defendants to occupy the front of the house as a stand for their carriages. Giving this consent the force of an assignment of the hotel’s right to use the street as a carriage stand of its own (and nothing more can he claimed for it), the question arises what right the hotel proprietor possessed in the street for such a purpose. Here an important distinction between the case- of a hotel proprietor maintaining a carriage stand before his house and that of a merchant must be observed; the former uses his vehicles for hire, whereas the latter uses his merely as aids to his business. So also the merchant, of necessity, uses many wagons and trucks in immediate connection with his business, while the hotel proprietor, though he may keep his own carriages, does not imperatively need them as a means of carrying on his business in a city like New York, where the furnishing of carriages of all sorts is a separate and distinct branch of business; and the proprietor of a hotel, therefore, has no more right to use the street fronting his house as a carriage stand for hire than a hackman. That being so the consent of the proprietor of this hotel conferred no right on the defendants to use the street as a hack stand, for he could give no othei or greater rights than he himself possessed. So also his consent to the establishment of á stand in front of his premises, was not,, as counsel for the appellants argues, the source of the city’s power to treat the premises as a carriage stand; it has jurisdiction over these premises, as over all other' streets in the city, subject to the owner’s right to- use them, and when, by his consent, he waived'that right in favor of the defendants, they occupied them, subject to the conditions imposed by the city ordinances regulating carriage stands and their use. The assent of an interested party to such a disposition of his right to the street, as was made in this instance, is required in order to prevent any interference with the rights of owners and lessees to the street in front of their premises on the part of the municipality. Aside from any question of license fee, the owner’s consent is required by section 453 of the revised ordinances, which ordains that the owner of any hackney coach who shall stand waiting for employment at any other place than as therein provided, shall be liable to a fine of ten dollars. Those places are the public hack stands and the front of private premises —■ such as hotels, etc. The latter places become stands by virtue of a special permit from the city, which issues only with the owner’s consent. Although the defendants have the owner’s consent, they have not received the city’s permit to stand in front of the hotel, and they argue that they have no need of a permit from the municipality because the proprietor of the hotel has the right to use the street in front of his house as a stand for carriages, and that under the agreement between him and the defendants, the latter are his agents, and by virtue of his written consent may use the street in front of the hotel to the same extent as he might; and on that point defendants’ counsel cites People ex rel. Thompson v. Brookfield, 6 App. Div. 398. But that case is not apposite, for there it appeared that the hackmen who stood in front of the hotels in question had a regular permit from the city to do so; while here the appellants have no such permission. But the owner’s consent has not the effect of an assignment of his right to use the street as a carriage stand. If he had such a right it was a personal privilege and was not assignable. After that consent was given new relations between the city and the defendants arose, viz., those of licensor and licensee, for the consent became effective only upon the issue of a special permit and the payment of the license fee; nor, even then, is the right to a permit absolute; the granting or refusal of it rests in the discretion of the mayor or chief of the bureau of licenses. § 12, supra.

Touching the power of the city to pass the ordinances in question, that power is amply conferred by the Legislature, acting within constitutional limits, and there would be no profit in a particular examination or collection' of the cases on that subject. Indeed the only point made affecting the validity of any of the ordinances involved in this action, relates to that clause of section 13 of the general ordinances referred to, which is expressed as follows: and no other licensed hackman shall come upon or use said stand,” and the views already expressed dispose of defendants’ contention in that respect.

Both questions, propounded in the case as agreed upon, must be answered in the affirmative, and the judgment affirmed, with costs.

Freedman, P. J., and Truax, J., concur.

Judgment affirmed, with costs.  