Opinion
August 31, 1933.
Naylon, Maynard, Bates Smith, for the plaintiff.
Richard J. Sherman, for the defendants.
This is an application by the plaintiff for an order restraining the defendants during the pendency of the action herein for an injunction from taking any steps to enforce as against the plaintiff an ordinance of the defendant city No. CXXIII, which is the general peddler and hawker ordinance, and ordinance No. CXLVIII, which provides that "No person, firm or corporation shall wholesale or sell from a motor propelled or horse drawn vehicle on a cash basis any fruit, vegetables, berries, meats, poultry, fish, farm or garden produce, teas, coffees, groceries, pastry or goods, wares or merchandise of any kind in the City of Saratoga Springs * * * without a license issued by the Commissioner of Accounts upon payment of a license fee to be fixed by said Commissioner on the issuance of such license of not less than five dollars nor more than twenty-five dollars per day or not less than five dollars or more than two hundred fifty dollars per year."
As to ordinance No. CXXIII, it may readily be found that the same is not applicable to the plaintiff, as it is neither a peddler nor hawker. The plaintiff conducts a bakery business and sells bread at wholesale prices to its regular retail customers. It does not sell at retail from house to house. It is not in any sense a peddler. ( Village of Stamford v. Fisher, 140 N.Y. 187. )
Ordinance No. CXLVIII is the same ordinance involved in a proceeding recently decided in this court ( 149 Misc. 92), entitled General Baking Co. v. City of Saratoga Springs. On the authority of the decision in that proceeding, the motion for an injunction pendente lite is granted.
Enter order accordingly. No costs of motion.