I am of opinion that the record fairly shows that the penalty was imposed for a violation of the ordinance prescribing the dimensions of the sign, and not for a violation of the ordinance requiring that plans of the proposed structure be filed, and the learned counsel for the city so concedes. The record, therefore, I think, fairly presents the question as to whether the ordinance limiting the dimensions of a sign is valid. I am of opinion that it is not. It is entirely proper and quite essential to public safety that no structure should be erected without the approval of competent local authorities who should pass upon the plans, with a.view to determining the safety of the structure, but this ordinance, arbitrarily and without regard to the question of safety, limits the size of a sign in a manner to prohibit the construction of a sign, no matter of what material or how securely attached, at an elevation above the level of the streets at which other structures, which cannot be erected with greater safety or security, are permitted. It is too plain for argument that a sign may be erected which, assuming this ordinance to be valid, would be a violation thereof at an elevation and of such material and with such support arid fastenings that it would be at leást as safe as the buildings and towers which are permitted to be erected under the forms of law upwards of forty stories and over 500 feet in height. The ordinance, therefore, I think, has not been properly framed, for it may not be said as matter of law that no sign of dimensions greater than those specified .in the ordinance can be erected without jeopardizing the public safety.
I, therefore, vote to reverse the determination of the Appellate Term and the judgment of the Municipal Court.
Determination affirmed, with costs..