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CITY COURT OF NEW YORK, LONG BEACH, NASSAU COUNTY 1969.NY.42846 <>; 304 N.Y.S.2d 276; 60 Misc. 2d 738 September 17, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.HEMPSTEAD BANK, AS TRUSTEE OF ESTATE OF MORRIS CANTER, DECEASED, DEFENDANT. THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF, V. WILLIAM CHICKRAY, DEFENDANT Dalton & Henoch (Gilbert Henoch of counsel), for Hempstead Bank, defendant. Zimmerman & Popper (Milton Popper of counsel), for William Chickray, defendant. Arthur B. Welsher, Corporation Counsel (H. H. Zand of counsel), for plaintiff. Abraham Schlissel, J. Author: Schlissel

Abraham Schlissel, J.

Author: Schlissel

 Defendants, here under prosecution for violation of the Municipal Code, challenge the existence of the ordinance referred to and insistently contend that same was never validly enacted and is not now in force.

It is, in essence, defendants' claim that this article (and, in particular, section 10-814.3 thereof) is not now enforceable because in purportedly enacting it the Long Beach City Council undertook to amend a previously repealed statute by adding a new section thereto.

Specifically defendants argue that the City Council erred and its action of September 12, 1967 (when it purportedly passed Ordinance No. 855 which includes section 10-814.3) was a nullity because its enactment resolution stated that "Chapter 10, Article 8 of the Municipal Code of the City of Long Beach, duly enacted by the Council of the City of Long Beach on December 3, 1957, shall be and the same hereby is amended by adding thereto a new section numbered Section 10-814.3 to read as follows:".

The difficulty with this councilmanic action, say defendants, is that chapter 10 of article 8 of the Municipal Code of our city as enacted on December 3, 1957 had already been repealed by Ordinance No. 749 enacted June 1, 1965 and reciting that "Chapter 10, Article 8, Section 10-801 through 815 of the Municipal Code be and the same are hereby repealed and superseded."

From the foregoing defendants argue with considerable logic and much persuasiveness that it is impossible to "amend" (in September of 1967) a provision which had been "repealed" (in June of 1965).

Although several times invited to cite authority in support of this very interesting proposition, defendants have failed to do so, nor indeed has the Corporation Counsel to whom similar invitations were extended produced any authority in support of his claim of validity.

This court therefore finds itself compelled to consider this matter as one of "first impression" complicated by the repeatedly-expressed admonition to courts of first instance to exercise great restraint in declaring legislative enactments either unconstitutional or unenforceable.

This court cannot, of course, condone the error into which the City Council fell when on September 12, 1967 it undertook to "amend" a nonexistent and previously "repealed" ordinance; nor can it excuse the incredible confusion and proliferation of enactments which induced, if they did not, indeed, cause this regrettable error.

Nonetheless, as matter of original determination and in an effort to validate and make effective the clearly expressed intent of a unanimous City Council (as expressed in Ordinance No. 855 of September 12, 1967), this court rejects defendants' contentions and each and all of them, and holds that section 10-814.3 (of article 8, chapter 10 of the Long Beach Municipal Code) was validly enacted and was on the date of commencement of this prosecution, and now remains, in force and effect.

The court further decides and now rules that the reference in Ordinance No. 855 to "amendment" of the already-repealed ordinance of December 3, 1957 should and may safely and properly be disregarded.

This determination is made by the court with full consciousness of the fact that this is a criminal statute which it is construing and that it is under a continuing mandate to construe such a statute strictly.

Nonetheless, this court firmly believes that no legitimate interest of these or any other defendants (present or prospective) will be adversely affected by the instant determination; that no defendant can possibly have changed his position in reliance upon astute counsel's discovery of the asserted irregularity of this enactment, and that a fair balancing of the public against the private interests here involved not alone justifies but virtually mandates the conclusion here reached.

As the late and truly great Judge Cardozo said in Wood v. Duff-Gordon (222 N. Y. 88, 91), in a different context but in language which is equally appropriate here: "The law has outgrown its primitive stage of formalism when the precise ...

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