Misc.] Supreme Court, March, 1921. ing a franchise, authorized individuals to run auto buses on established routes through the streets for their own profit. The court said, at page 743: "If the welfare and convenience of the citizens require additional accommodations for transit such as would be furnished by established stage routes, there is a legal way to accomplish the result. The city has power to grant a franchise, subject to the determination of its necessity and convenience. But the city has no power of municipal operation; nor has it the right to authorize others so to use the streets without observing the conditions to a legal and regular grant of a franchise. "The plaintiff plainly suffers a special injury from the competition of these stage lines and from the added obstruction to the operation of its cars under its franchise. Even if the purpose of establishing the lines is not to injure the plaintiff in the exercise of its legal rights, it has that effect. Moreover, no bus line can be established in streets occupied by the plaintiff unless a certificate of convenience and necessity be secured, and upon an application for such certificate the plaintiff has a right to be heard. A common carrier, therefore, has a legal right to question the necessity and convenience to the people of a paralleling common carrier. The plaintiff, having a franchise to operate in the public streets, and being under financial pressure of the prevailing economic conditions, suddenly finds its most profitable lines paralleled by stages operating under the control of the defendant without authority of law and without having obtained a certificate of public convenience and necessity. I think the plaintiff has a standing in a court of equity for relief. * "Whether the plaintiff has failed in fulfilling the obligations of its franchise has nothing to do with Supreme Court, March, 1921. [Vol. 115. the question now before us. If it has, the law affords a remedy. The orderly processes of the law are better and probably more effective than an attempt at correction by an unauthorized and illegal administrative act." No further citation of authorities is needed to demonstrate that the plaintiff is entitled to the injunction sought herein. It seems desirable, however, in view of the multiplicity of similar instances in which the statute in question is being violated in this community, so openly and continuously that the court may take judicial notice of it, that attention. should be called to the fact that failure to comply with such statute is a violation of the Penal Law. Section 29 of the Penal Law provides as follows: 66 "§ 29. Violation of statute which imposes no penalty is a misdemeanor. Where the performance of any act is prohibited by a statute, and no penalty for the violation of such statute is imposed in any statute, the doing such act is a misdemeanor." Section 1937 of the Penal Law provides as follows: " 1937. Punishment of misdemeanors when not fixed by statute. A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both." In other words an act expressly prohibited by the public statute is in its inception and always must continue to be, unlawful, and where the performance of any act is prohibited by a statute and no penalty for the violation of such statute is imposed in any statute, the doing of such act is a misdemeanor, punishable Misc.] Supreme Court, March, 1921. by imprisonment for not more than one year, or by a fine of not more than $500, or both. Keller v. Erie R. R. Co., 183 N. Y. 67; Marra v. N. Y. C. & H. R. R. R. Co., 139 App. Div. 707. While the regular remedy for the prosecution of those who violate the Penal Laws of the state lies in arrest and punishment, the court will not compel parties whose rights are clear to rely on peace officers to protect them in their enjoyment of those rights. "There is a preventive as well as a remedial justice." Green Island Ice Co. v. Norton, 42 Misc. Rep. 238; affd., 105 App. Div. 331; 189 N. Y. 529; City of New York v. New Jersey & S. I. Ferry Co., 173 App. Div. 496. Every argument that could be advanced here in favor of permitting the jitneys to run without a license upon the streets of the cities here affected has been conclusively answered by the Appellate Division in the case of Brooklyn City Railroad Co. v. Whalen, from which I have quoted. There the court said: "If the welfare and convenience of the citizens require additional accommodations for transit, there is a legal way to accomplish the result." The city had no right to provide municipal bus lines nor did it have the right to authorize others so to use the streets without observing the conditions of the law requiring the issuance of a license. "Whether the plaintiff has failed in fulfilling the obligations of its franchise has nothing to do with the question;" that if the railway company had failed in its obligations, the law affords a remedy. And finally, the court announced what seems to me must be recognized by thoughtful people everywhere as the only safe and sane rule of conduct in these emergencies, when it said that the orderly processes of the law are better and probably more effective than Surrogate's Court, Bronx County, March, 1921. [Vol. 115. an attempt at correction by an unauthorized and illegal act. I cannot help referring here to what President Thomas Jefferson said in his first inaugural address when he stated that he believed this the strongest government on earth. He said: "I believe it the only one, where every man, at the call of the law, would fly to the standard of the law and would meet invasions of the public order as his own personal concern." He said that we can tolerate error of opinion in this country so long as reason is left free to combat it. If that is the sentiment of every law abiding citizen and of every public officer charged with the duty to preserve order and carry out the orderly processes of the law, as I thoroughly believe it is, the controversy here will be settled in accordance with our best traditions. The plaintiff is entitled to the injunction sought herein. Application granted. Matter of the Application for Letters of Administration on the Goods, Chattels and Credits of FLORENCE P. MCGUIRE, Deceased. (Surrogate's Court, Bronx County, March, 1921.) Guardians - infants guardian of property has preference over guardian of person in being appointed administrator. The guardian of the estate of an infant, who is the sole surviving next of kin of his deceased mother, will be appointed Misc.] Surrogate's Court, Bronx County, March, 1921. administrator of her goods, chattels and credits in preference to another who, as the guardian of the infant's person, has no authority to receive, hold or manage the infant's property. PROCEEDINGS on application of a guardian of an infant for appointment as administrator of the estate of the infant's mother. Edward J. McGuire, for petitioner, Irving National Bank. Francis S. McAvoy (George H. Taylor, Jr., of counsel), for petitioner, Mary L. O'Sullivan. SCHULZ, S. The guardian of the estate of an infant applied for appointment as administrator of the goods, etc., of his deceased mother of whom such infant is the sole surviving next of kin. The guardian of the infant's person files a similar petition praying for her appointment. After stating the order in which administration shall be granted upon estates of a decedent, section 2588 of the Code of Civil Procedure, so far as material to this controversy, provides that "If a person entitled to take all the personal estate is an infant, his guardian shall have a prior right to letters in his place and stead." The infant in question being the sole next of kin of the decedent and being entitled therefore to take all of her personal estate (Decedent Estate Law [Cons. Laws, ch. XIII], $ 98, subd. 4) it follows that his guardian is entitled to such appointment. The term guardian as used in chapter XVIII of the Code applies to general guardians and a general guardian is stated to be "one appointed by the supreme, or surrogate's court, for an infant, either over or under fourteen years of age." Code Civ. Pro. 2642. The Surrogate's Court has jurisdiction to appoint a general guardian of the person or of the |