(dissenting.) The plaintiff, the Adams Express Company, under sanction of an express ordinance of the common council, erected a permanent awning, supported by iron posts, over the sidewalk in front of its place of business in this city. The power of the common council to grant this permission is derived from the act of the legislature (consolidation act 1883) by which it is enacted- that the common council shall have power to make ordinances to regulate the use of streets and sidewalks for signs, signposts, awnings, awning-posts, and other purposes. This seems to be both an ample and express grant of power to permit, under proper regulations, the use of the public streets for the purposes designated. The power is not inferred nor implied, but directly given. The legislature must be presumed to have known that in previous charters of the city it had made similar grants of power to the common council to make ordinances to regulate the use of the streets for awnings and awning-posts, and that such use had been open, common, and general in all the streets of the city from time immemorial. It was not necessary, therefore, that the legislature, to authorize such use, should do more than provide for its regulation by the city authorities. It is argued, however, that the whole effect of this enactment is destroyed by a prior provision of the same statute, by whicli the common council is authorized to make ordinances to prevent encroachments upon and obstructions to the streets, and that they shall have no power to authorize the placing or continuing of any encroachment or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. The contention is that this general enactment against encroachments upon the street overrides and nullifies the subsequent provision authorizing the erection of awnings and awning-posts. In construing the statute, the rules of interpretation require the courts to give effect to all parts of the act, so that all of them and all their clauses maybe operative. If the general intent of the act and the particular intent are in conflict, the particular intent is an exception to the general intent. These rules require that we should—First, interpret the provision empowering the common council to regulate the use of the streets for awnings and awning-posts as an express permission to use the streets for sucli purposes, otherwise that clause pf the statute will be wholly meaningless and' inoperative; and, second, for the same reason we must regard this clause as an exception to the general enactment against authorizing incumbrances and obstructions. In doing this we shall be violating no manifest intention of the act; for such intention, as'is evident from the act itself, was that awnings and awning-posts, signs arid sign-posts, were not encroachments nor obstructions such as the act was intended to prohibit. There is a wide distinction between .the erection of posts near the curb-stone to support an awning according to the immemorial usage of the merchants, traders, and shop-keepers of the city, and such obstructions and incumbrances by goods, bales, boxes, carts, and stalls which actually impede the passage of persons and vehicles. It was evidently against the latter and other and graver impediments that the general clause of the statute was directed, and not against the constructive incumbrance caused by awning-posts. It is not to be assumed that the legislature intended to violate the organic law, and appropriate any part of the public street to private use, but that, in making this enactmetit, it recognized"a use of the street sanctioned by immemorial custom, and not falling within any of the constitutional pro*165hibitions. In People v. Railroad Co., 117 N. Y. 150, 22 N. E. Rep. 1026, it was lie!cl that the municipal ordinance permitting the erection of sheds upon the public piers was authorized, holding that the legislature lias power, and may delegate it to municipal authorities, to withdraw from public use what is in legal contemplation a public highway, and appropriate it to some other or quasi private use, subject only to the restriction that the new appropriation shall be in the direction of public utility. It seems clear that in the matters now before us for consideration such restrictions have been observed in authorizing, under proper regulations, a use of the streets to which they have always been subject by general public consent and custom. No adjudication in the court of last resort is found upon the point here involved. In Hume v. Mayor, 74 N. Y. 264, it was held that an awning over the sidewalk, supported by wooden posts bedded in the ground, made for private purposes, if unauthorized, is an encroachment upon the public street, and a nuisance; but the court held it unnecessary to pass upon the question whether the city had power to authorize such a structure. In Trenor v. Jackson, 15 Abb. Pr. (N. S.) 115, a similar provision in the city charter of 1870 was held to confer no power to authorize the erection of awning-posts, because (1) the legislature had no power to appropriate public property to private use; and (2) that the authority is not given by express terms. This is a special term opinion per Monell, J., and entitled to the greatest respect; but the ruling of the court of appeals in People v. Railroad Co., above, requires some modification of the learned judge’s views respecting the legislature’s authority over the subject in question. The judgment should be affirmed.