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CHARLE'N, to a vendee under the sheriff, I doubt whether it can avail
August, 1823.
the party against the sheriff himself. The counsel will
Elkison then consider whether he will sue it out.

V.

Deliesseline,

Construction

of the act" for

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Maxwell, District Attorney, for the Prosecution.
D. Graham and Anthon, for the Defendant.

The defendant was indicted for erecting a building

the more ef against the act entitled "an act for the more effectual prefectual prevention of fires in the city of New York," passed the 9th

vention of

fires in the of April, 1823.

city of New York," passed 9th of April, 1823.

The building was erected in Elm street.

The line, or fire limits, begins on the East River, and passes through Montgomery street and Canal street, to the Hudson River. The line runs through Elm street, and includes the west side.

It appeared by the testimony of a number of witnesses, that the defendant erected a wooden building at the corner of Elm and Pearl streets. The building was

29 feet by 22, and two stories high. It had been erected N'W YORK, Sept. 1823. by raising a shed of the same dimensions, which had been built a great number of years, about 6 feet, and enclosing The People and covering it with a roof.

It appeared by the testimony, that new sills were added; that it covered the same space of ground when raised that it did before; that the roof was only repaired: that it was raised 6 feet, or at most 7 feet; that before it was only a shed, but that now it was a comfortable work-shop; that its danger was much increased by the addition of a greater quantity of combustible materials, and on account of its height. The question was, whether this was erecting a building within the act.

RIKER, Recorder. The evidence is clear, that this building is within the fire limits, as defined by the act. The sole question for the jury to decide is, whether the erection of this building falls within the prohibition intended by the statute. The indictment is framed under the act "for the more effectual prevention of fires," passed 1801, re-enacted in 1813, extended in 1815, and again extended the 9th of April, 1823.

At common law a building of wood might have been erected, and was often erected in cities and towns, until the frequent caution given to the legislature of their dangerous tendency, by numerous fires and conflagrations, that not only destroyed the houses and the property in them, but many valuable lives: to prevent which, the parliament of Great Britain passed several prohibitory statutes. (1 Black. Com. 87.) And by the

V.

Marley.

N'W YORK, legislature in this state by the several statutes before menSept. 1823. tioned,

The People

V.

Marley.

The legislature meant to guard the city against fires. That is the mischief they intended to prevent; and it is the duty of the court so to construe the acts of the assembly, as that intent may be carried into effect. With this view of the case, we are of opinion, that any material alteration in the building, any considerable augmentation of it, so as to enlarge its dimensions laterally, or on its sides, is within the meaning, and, therefore, within the act. If raised a story, as in the case now before the court, it must be done by the addition of combustible materials: the danger is, therefore, increased; and in the second place, the building is higher than it was before, and, if on fire, not so easily extinguished. We are of opinion, that it is within the act, as it is clearly within the mischief the legislature meant to prevent.

The jury found the defendant guilty.

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Maxwell, District Attorney, Counsel for the People.
Price, Counsel for the Prisoner.

Mr. Gautier was indicted under the act of the Assembly of the state of New York, passed the 15th day of April, 1817, entitled "an act to regulate sales by public auction," for selling goods at public auction, not having been appointed in pursuance of that or any other act, of the assembly of this state. The words of the second section of the act are," that the person administering the government of this state, by and with the advice and consent of the council of appointment, shall annually appoint so many persons, within this state, to be auctioneers, as they shall judge proper." The third section declares, "that if any person or persons, not appointed and authorized in the manner by this act directed, nor by or under the authority of the United States, shall sell, or attempt to sell any goods, wares, merchandize, or effects, whatever, by way of public auction or vendue, within this state, he shall be considered guilty of a misdemeanor, and shall, on conviction, be fined a sum not exceeding five hundred dollars, or imprisoned for a term not exceeding three months," &c.

N'W YORK,
Oct. 1823.

V.

Gautier.

Price, counsel for the defendant, contended, that there could be no conviction under this statute, inasmuch as the The People constitution had abrogated it by changing the manner of appointment. An auctioneer could not now be appointed "by and with the advice and consent of the council of appointment, such a power not being in existence, having been abrogated by the constitution, and by "an act directing the mode of appointing certain officers," which defined the manner of appointing auctioneers, to wit, "that the person administering the government of this state shall nominate, and with the consent of the senate, appoint." It was entirely silent as to any penalties for selling goods at public auction, without such appointment. It was a casus omissus, not provided for by any law in the state. Every man who chose might sell at public auction without being amenable to the penalties of the act of the 15th of April, 1817, or any other act. It would be the duty of the legislature to pass an act upon this subject; but until that was done, there was no remedy.

The court was of the same opinion; and decided that the act of 1817 was inoperative, and abrogated by the new constitution; and the act of 1823 was silent as to any penalties for selling goods at public auction, and instructed the jury to acquit the defendant.

The jury returned a verdict of not guilty.

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