We are of opinion that the village ordinance in question, enacted pursuant to Village Law (§ 90, subd. 19, as amd. by Laws of 1922, chap. 523), is not invalid on its face. The village trustees are empowered by the statute, originally passed in 1884 (Laws of 1884, chap. 129, adding to Laws of 1870, chap. 291, tit. 3, § 3, subd. 28; revised by Village Law of 1897, § 89, subd. 19; now Village Law, supra), to regulate or prevent the landing of excursion boats in the village. The ordinance of May 11, 1925, effective May 29, 1925, provides for application for the consent of the trustees who may refuse it or may grant it with such restrictive or regulatory provisions as may be deemed advisable. (See Rye Village Ordinances, chap. 12, art. 8, § 1.) The plaintiffs operating an excursion boat challenge the right of the village trustees to regulate them in any way. They refuse to apply for a permit or consent. The village trustees have not attempted to prevent the operation of plaintiffs' boats. Upon application made they may grant their consent. We do not believe the courts should assume that these duly elected village officials will endeavor to enforce unreasonable or arbitrary restrictions. We should not invalidate laws or ordinances upon any such presumption. The plaintiffs should first comply with the law and the ordinance. If the village trustees *743upon application made to them, act illegally, arbitrarily or unreasonably, then only should the question be relegated to the judicial branch of the government.
Upon the agreed statement of facts, the defendants are entitled to judgment dismissing the complaint, with costs, without prejudice.
Kelly, P. J., Kelby and Kapper, JJ., concur; Jaycox and Rich, JJ., dissent with memorandum, and vote to award judgment for plaintiffs.