The corporation in virtue of its charter has express authority to make and establish ordinances of the description mentioned in the argument submitted to us on this appeal, and to impose penalties for their violation, and to levy or sue for and recover the same to their own use. This is a very important franchise, and if it be conceded that (as it appertains to the municipal power given for the purpose of government merely), it is competent for the legislature to interfere so as to impair the right of the corporation to affix and -collect such penalties for their own use, they are not to be deemed to have done so by implication unless their statute is irreconcilably inconsistent with this right. This is no such case. The punishment of the misdemeanor and the civil remedy given to the city may stand together. The case is not so strong as where the same legislative body gives an action to the overseers of the poor to recover a forfeiture and by another act punishes the offender by imprisonment, and yet such acts stand together.
Here the corporation, in virtue of its charter, imposes a penalty for the breach of its authority and ordinance, and *165collects the debt which such violation creates in its favor. The state punishes the offender for the public wrong. In my opinion the statute in question in no wise conflicts with or impairs the right of the corporation in this respect. The other grounds of reversal relate to the proceedings on the trial, in respect to which it must suffice to say—
First. The proofs required of a plaintiff when the defendant does not appear, must undoubtedly be legal evidence, and must be prima, facie sufficient to establish the cause of action; but they need not necessarily appear by the return to be such that no possible objection could have been taken to their admissibility if the defendant had been present objecting. Thus we would not reverse, because the plaintiff addressed leading questions to a witness, or because he gave evidence of the contents of a paper in the defendant’s possession without preliminary proof of notice to produce it. The return states that the plaintiff read the ordinance sued upon, in evidence. It is true the return does not say from what book or paper it was read, but the ordinance itself was competent evidence, i. e. it was in its nature competent and essential to the recovery. It is proper for us to presume that it was properly authenticated. At all events, if the defendant wished to reverse on this ground, he should have obtained a further return by which it would appear from what book or paper the ordinance was read to the court. And this is the more proper since by the act of 1832 (Sess. Laws, p. 251), the corporation ordinances may be read in evidence from the volume of ordinances published by authority of the common council. We must, I think, presume that they were read from that volume until the defendants show that they were improperly read.
The proof was positive that the defendants hung out shirts etc. in front of the store, and that they carry on business there. In the absence of further explanation, this was evidence of a joint act and prima facie sufficient to made them jointly liable.
The day laid in the complaint, if it was at all material to prove it as laid, was sufficiently identified by the witness to be prima, facie in support of the complaint. He does not, it is *166true, swear positively to the day, but says, on or about that day. I do not, however, regard the day as material.
Finally, it is urged that but one offence was proved. The witness says, they hung shirts, etc., across the side-walk, on or about the 26th November, and “ that they have done so for months.” The language of the witness is to be taken in the sense in which such language is ordinarily used, and in which it is usually understood, and when applied to the exposure of goods for sale in front of a store, no ordinary mind would hesitate to say that the witness meant that they had done so daily or at least, during the business days for months.
In determining whether a plaintiff has proved his case when the defendant does not appear, we cannot be hypercritical, and a defendant who neglects his case below has no right to call upon us on appeal to be astute to find grounds for reversal, especially when he does not excuse his default nor show that any injustice has been done, nor seek a new trial on that ground.
The judgment must be affirmed. ■
Judgment affirmed.