Memoranda of the court by
Fort, J.
This conviction cannot be sustained. The complaint in this case fails to negative the proviso in the section of the ordinance under which the conviction was had. Where the penalty is laid by a penal statute or ordinance, and there is a proviso in the section laying the penalty which excepts out of the section certain places, things or persons, the complaint must contain proper averments to show that the defendant sought to be summarily dealt with was not within the exception. The complaint in this ease should have averred that the vehicle not licensed was not used in connection with any lively stable. Doughty v. Conover, 13 Vroom 193; Jacobus v. Meskill, 27 Id. 255.
It is. true the cases just cited relate to suits lor penalties for the violation of a statute, but there is no ground upon which we -can distinguish summary proceedings to enforce penalties for the violation of statutes from similar proceedings for the violation or ordinances.
The conviction brought up will be set aside.