117 Misc. 82 | N.Y. Sup. Ct. | 1921
This is a motion for an injunction pendente lite. The plaintiffs in this action are the owners of valuable lands and buildings on Broad street, between Exchange Place and Beaver street, in the borough of Manhattan, city of New York, and they
At the point where the defendant and its members-conduct these operations, the width of the roadway of Broad street is forty-two feet, and the defendant assumes to rope off for its exclusive use for trading purposes, one-half of the roadway in said street, thus leaving only a small portion of the roadway for vehicular traffic, and even that space is more or less constantly used by members of the defendant in passing from the trading ground to the sidewalk. In addition to that, it is shown that both on the -east and west sidewalks immediately adjoining this roped-off area, that exclusive of pedestrians actually passing the place, there are crowds of from 100 to 150 people standing on the sidewalks, who are either interested in the operations of the said trading market or are
The claim of the plaintiff in this action is, that the defendant is guilty of a public nuisance in assuming to appropriate for its own personal use a part of the public highway, and in doing so these plaintiffs are subjected by the said nuisance to special damages, which are not merely such as the general public are subjected to. If that is so, then the plaintiffs clearly are entitled to injunctive relief. It is abundantly settled that the primary purpose of the street is for traveling, and that whatever causes an unreasonable obstruction or interference with travel, becomes a nuisance.
The defendant claims that a large number of persons, other than members of the defendant corporation, as well as some of the members of the corporation, have, for a great many years, without objection on the part of anybody, pursued peacefully their business of buying and selling securities in that part of Broad street known as the “ Curb.” It further states that this practice has followed a long established and well recognized custom on Broad street, or its immediate vicinity, dating back for more than 150 years. I do not understand the force of this allegation, as I cannot believe that either the defendant’s president, who made the affidavit, or the counsel for the defendant, have any idea that they have acquired any prescriptive right to use the .street, and so far as the injury to the plaintiffs go, it is a continuing damage, and no length of time as alleged by the defendant would bar a complaint by the plaintiffs as against the continuance of the nuisance.
It is quite true that for a long period of time and up to about a year ago, what was known as the “ Curb
The moving affidavits and the complaint clearly point out the special damages which the plaintiffs claim to have suffered. All the buildings and premises owned by the plaintiffs are located in a block on Broad street, between Exchange Place and Beaver street; the said block being about 465 feet in length, and at the site in question the width of the roadway of Broad
After a careful examination of all the papers submitted on this motion, I am forced to the conclusion that the plaintiffs are entitled to an injunction, as the facts submitted clearly establish, to my mind,- that the plaintiffs are being subjected to special damages by reason of the defendant and its members continuing to conduct an open-air market for the sale of securities in Broad street in the immediate neighborhood of the plaintiffs’ properties.
In the case of Wakeman v. Wilbur, 147 N. Y. 657, 663, the court, said: “ The obstruction of a public highway is an act which in law amounts to a public nuisance, and a person who sustains a private and' peculiar injury from such an act may maintain an action to abate the nuisance and- to recover the special damages by him sustained. (People v. Kerr, 27 N. Y. 193; Davis v. Mayor, 14 id. 506; Adams v. Popham, 76 id. 410; Chipman v. Palmer, 77 id. 51.) The extent
Again, in the case of Callanan v. Gilman, 107 N. Y. 360, 371, the court, said: “ That the plaintiffs suffered some special damage not common to persons merely using the street for passage is too obvious for reasonable dispute. Direct proof of the damage was not needed. All the circumstances show it.” The above language is quite appropriate to the case at bar.
Again, in the later ease of Ackerman v. True, 175 N. Y. 353, 360, the court, said: “ It is well established by the decisions of this court that interferences with public and common rights create a public nuisance, and when accompanied, with special damage to the owner of lands give also a right of private action to such owner, and that a public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands becomes also a private nuisance. That this encroachment upon the street was a public nuisance and that as to this plaintiff it was a private nuisance, we have no doubt.” This language can be used with the same judicial force in the instant case, because the evidence before me shows that this improper use of Broad street has a tendency to, and actually does, impair the value of the adjoining property of the plaintiffs, and makes it more difficult to rent the same and reduces considerably its rental value. Clearly, this is a special and peculiar injury to the plaintiffs, and injunctive relief should be granted.
Then further in the issue of July 2,1921, it is stated that the officers of the defendant corporation had interviewed the mayor of the city and the police commissioner and had secured their assent and approval to the occupancy of the site in question by the defendant and its members, and further, that the defendant and its members would be protected in their use of the street for business purposes. Of course, the statement that the mayor and the police commissioner had approved and assented to such use of the public street cannot be given any credence. It is to be presumed that public officers perform their duties and careless statements in newspapers to the contrary should be disregarded in the absence of proof. However, one fact remains self-evident and that is, that the police department for years has, by its inactivity, sanctioned this illegal use of the street by not only this defendant and its members and such others as
Motion granted.