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Shapiro v. City of Newark

Decided: April 11, 1957.

HAROLD SHAPIRO, PLAINTIFF,
v.
CITY OF NEWARK AND SAMUEL LOHMAN, LICENSE COMMISSIONER, LICENSE DIVISION OF THE DEPARTMENT OF REVENUE OF THE CITY OF NEWARK, DEFENDANTS



Waugh, J.s.c.

Waugh

The City of Newark, under authority of R.S. 45:24-3, fixed a license fee for transient and itinerant merchants at $1,000 for 180 days. The plaintiff Harold Shapiro, under written lease, rented premises located at 160 Market Street, Newark, New Jersey, from the Trustees of the First Presbyterian Church in Newark for a term of three months from October 1, 1956 to December 31, 1956. In the premises leased the plaintiff engaged in the business of selling children's toys. Newark's licensing authorities contended that plaintiff was subject to the ordinance. He, therefore, paid the license fee under protest, and now brings this action in lieu of prerogative writ seeking its recovery.

Plaintiff urges first that the city must establish his intent to be "a transient merchant," and contends the city has failed to do this; and accordingly, urges for this reason alone, he is entitled to a refund of the license fee paid by him. In support of his contention he urges that the facts here are as consistent with his intent to remain for a year as they are consistent with his intent to remain only for the term of the lease. His testimony is that he had a verbal agreement with the landlord's agent to continue as a tenant if business warranted it; and that he was making a "test" as to the location leased in order to determine its suitability for his particular business.

This argument does not persuade me. Intent is better spelled out by what actually is done than by a state of mind to do something. Plaintiff leased a store for $5,500 for three months without reserving any right to extend

his lease, a valuable right, in the event business prospered. He chose the Christmas season -- the best possible toy season. He moved in October 2, 1956 and moved out two or three days after Christmas. He did not produce the witness, Mr. Schwebmeyer, with whom he made the alleged oral arrangement to continue as tenant. Mr. Wesley E. Howell, president of the landlord's board of trustees, testified he knew nothing of this alleged oral arrangement. I find that the city properly classed him as a transient merchant within the intendment of its ordinance.

Plaintiff next contends that N.J.S.A. 45:24-9 exempts him from the necessity of securing the license in any event. N.J.S.A. 45:24-9 through 13 deals with the right of certain honorably discharged military veterans and others to "hawk, peddle and vend." His argument is that having obtained a veteran's license from the Essex County Clerk, he is entitled to rely upon this license as authority to engage in the business of selling toys at 160 Market Street, and that no other license is necessary. In other words, plaintiff contends that the license to "hawk, peddle and vend" includes the right to be a transient merchant within the meaning of R.S. 45:24-3.

I find that the veteran's license held by plaintiff is restricted solely to the activities of hawking, peddling and vending and does not include the right to carry on business as a transient merchant. Sections 1 through 7 of R.S. 45:24 deal with transient merchants and itinerant vendors. These two classes are defined as follows in R.S. 45:24-1:

"* * * 'transient merchants' or 'itinerant vendors,' as used in this article, mean persons, corporations or partnerships, whether principal or agent, who engage in a merchandising business in New Jersey with intent to close out or discontinue such business within one year from the date of commencement, including those who for the purpose of carrying on such business, hire, lease or occupy any building, structure or railroad car for the exhibition and sale of such goods, wares and merchandise, but nothing in this article shall be construed to affect the sale of fruits, vegetables and farm products, such as meat, poultry, butter and eggs."

The statute does not define hawking or peddling. Webster's New Collegiate Dictionary defines these two terms as follows:

Hawking -- Offering for sale by outcry in ...


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