#### The Village of Port Jervis, Resp’t, *v.*Ernest M. Close, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed June 28, 1889.)*

1. Municipal corporation—Ordinance prohibiting sale oe merchandise WITHOUT LICENSE — To WHOM APPLICABLE — CHARTER VILLAGE Port Jervis—Laws 1873, chap. 370, § 51.

The charter of the village of Port Jervis (Laws 1873, chap. 370, § 51), provides that “it shall he the duty of the trustees, and they shall have power * * * to prohibit or regulate and license auction sales in said village, and hawking and peddling or stands for the sale of goods, merchandise or other articles in the streets or public grounds of said village,” etc. *Held,*that an ordinance prohibiting the sale of merchandise in the village, without first procuring a license, and imposing a penalty for a violation, applies not only to persons selling in the streets and public places, but also to a person leasing a store in which to hold his auction.

2. Same—Auction sales.

Selling at auction is essentially public in its character, and properly within the power of the state to regulate.

3. Same—Action for violation of ordinance—What no defense.

In an action to recover for a violation of the ordinance in question by-defendant: *Held,*that it was no defense to the proceeding that others had violated the ordinance and not been prosecuted.

Appeal from a judgment of the county court of Orange county affirming a judgment rendered by the police justice of the village of Port Jervis.

Section 116 of the by-laws and ordinances of the village of Port Jervis, entitled “License for sale of merchandise at auction,” provides:

“ § 116. Be it ordained, that sales of merchandise at auction, except legal sales and sales of second-hand household goods shall henceforth be prohibited within the village of Port Jervis, unless a license fee of five dollars for each day of such sale shall first have been paid, and a license therefor issued by the president of said village. Upon payment of such fee to him, the president of the village is authorized to issue such license. Each and every person violating any of the provisions of this ordinance shall forfeit and pay the sum of ten dollars for each day of such violation.” *John W. Lyon,*for app’lt; *C. E. Cuddeback,*for resp’t.

*731Pratt,

J.—This action was brought to recover penalties for alleged violations by the defendant of section 116 of the by-laws and ordinances of the village of Port Jervis in relation to the sale of merchandise in said village, without first procuring a license according, to the provisions of the ordinance cited.

The judgment was rendered by a police justice of the village and affirmed by the county court from which defendant appeals.

There seems to be no dispute about the facts as the defendant himself admitted that he violated the ordinance as charged.

We think the passage of such an ordinance was clearly within the powers conferred by the village charter by chapter 370 of Laws of 1873, § 51, which provides that “ It shall be the duty of the trustees, and they shall have power to prohibit or regulate and license auction sales in said village, and hawking and peddling, or stands for the sale of goods, merchandise, or other articles in the streets or public grounds of said village, etc.”

The defendant claims that because he leased a store in which to hold his auction, he is not liable; or, in other words, that the ordinance in question only applies to streets and public places, and that if he hired" a place in doors for a few, days, he could evade the ordinance.

In our view the ordinance was general and covered all sales at auction, except, perhaps, judicial sales and secondhand furniture. It was intended to apply to the business of auctioneers carried on in the village.

The ordinance was reasonable in its terms, and applied to all persons alike who should attempt to engage in that business.

Long and learned arguments have been indulged in by the counsel, but it is clear that the ordinance was within the act of legislature creating the charter, and that it is within the police powers which the legislature can exercise.

Selling at auction is essentially public in its character, and properly within the power of the state to regulate. *Brooklyn*v. *Breslin,*57 N. Y., 591.

It was no defense to this proceeding, that others had violated the ordinance and not been prosecuted. If we assume that defendant’s construction of the ordinance before quoted is correct, and that it only refers to auction sales upon the street or public places, yet it may well be that, under subdivision 37 of the same section, the trustees had power to regulate public auctions by “passing such by-laws, as they deemed necessary and expedient, for the good government of the city; but it is not necessary to go to that section, as the power is clearly granted in the previous subdivision.

There is nothing unjust or oppressive in the ordinance, and it cannot be said to be in restraint of trade.

*732We have examined all the exceptions and find no error. Judgment affirmed, with costs.

All concur.