(dissenting). By section 86 of the General Municipal Law the various municipalities in the State were granted the power to ‘‘ adopt ordinances regulating the nature of commercial and business activities that may be conducted on Memorial Day and Independence Day and the hours within which the various types of commercial and business activities may be conducted on Memorial Day and Independence Day ’ ’. Pursuant to such authority the defendant village by local ordinance (ch. V, § 5-501) decreed it unlawful:
“ in the Village of Herkimer, New York, for any person, firm or corporation to sell or offer for sale any article of property on Memorial Day or Independence Day during the hours of 9:00 a.m. and 6:00 p.m., except as follows:
*374‘ ‘ A. Prepared tobacco, bread, milk, eggs, ice, soda water, confectionary, ice cream, flowers, souvenirs, newspapers, gasoline, oil, tires, drugs, medicine, surgical supplies, fruit and vegetables, farm produce, meat, fish and poultry, fishing tackle and bait.
“ B. Food for on premises consumption, catering services and spirituous or malt liquors or wines, subject to the provisions of the Alcoholic Beverage Control Laws.”
In judging the validity of the ordinance our primary concern is not with the extent of financial hardship it imposes on a particular business operation such as the plaintiff’s but with whether the restrictions and prohibitions of the ordinance constitute a reasonable means to effectuate the lawful purpose of providing for the appropriate observance of two patriotic holidays by veterans, employees of commercial establishments and the public generally.
As pointed out in Good Humor Corp. v. City of New York (290 N. Y. 312, 317), “ Local laws are valid which have a substantial relation to matters within the field where legislative power is vested in the local legislative body of the city by the Constitution and statutes of New York. They must be reasonably calculated to achieve a legitimate public purpose ”. The regulation of the hours of business provided by the ordinance is in accordance with the specific authority of the General Municipal Law and there is nothing indicating that the village board sought to accomplish any unlawful purpose under the guise of regulation permitted by statute as was attempted in ordinances struck down in Trio Distr. Corp. v. City of Albany (2 N Y 2d 690); Good Humor Corp. v. City of New York, supra; Jewish Consumptives’ Relief Soc. v. Woodbury (230 App. Div. 228, affd. 256 N. Y. 619), and Peace v. McAdoo (110 App. Div. 13).
The proscription of nine hours of commercial activity on Memorial Day and Independence Day meets the constitutional requirement of due process by making reasonable provision to assure noninterference with the observance of our two great national holidays and not being in excess of the statutory delegation of power to the village board the judgment should be affirmed.
Witmbb and Bastow, JJ., concur with Goldman, P. J.; Mabsh, J., dissents in opinion in which Mould, J., concurs.
Judgment reversed on the law and facts, without costs, and plaintiff’s motion for summary judgment declaring ordinance invalid granted.