105 N.Y.S. 612 | N.Y. App. Div. | 1907
This is an action by the city to restrain the continuance of a nuisance caused by an' encroachment upon the sidewalk of Forty-second street, at the northwest corner of Forty-second street and Sixth avenue in the borough of Manhattan, ¡N ew York, and for a mandatory injunction requiring the abatement thereof, and that the side-walk be restored by the defendants, and in the event of their failure so to do, that the nuisance may be abated and the sidewalk restored by the city at their expense.
The appellant is the lessee of the premises at the northwest corner of Forty-second street and Sixth avenue and of the appurtenances. In 1859 the premises were owned by the defendant De Peyster.. The.city-’s record of “Receipts "for Street Vaults” shows that permit FTo. 208 was issued to him “for the northwest corner of 42nd Street and Sixth Avenue, for 2872 superficial feet, February 22nd, 1859 ; ” and it was admitted on the trial that such permit was issued. At the time that' permit was issued there was an-open aréa along the Forty-second street front of the building then standing on the premises and a vault underneath the sidewalk with a stairway leading into the same through the open area. After this permit was issued the 'vault was reconstructed and enlarged, pursuant to the permit and “ arched or closed over at that time.” De Peyster testified that “ The vaults were closed and the pavement put on top of them. They remained in that condition some time. The area was subsequently changed. The area was on tlie south side of the building, you know; that is on the Forty-second street side of the building, arid the steps were there always.” The open arep. was enlarged after the permit was issued and there were two wide staircases leading down into the area. The width of the open area as then constructed 'has neither been shown with accuracy nor approximately. There was a grass plot over the vaults, which was in recent years removed, and the opening through the sidewalk was then greatly enlarged;' it was twenty feet six inches or the entire width of the building in length and thirteen and one-half feet in width, that is, projecting that distance from the building line into that part of the street appropriated for sidewalk purposes, and it has so remained and been maintained ever since. It was not shown that any other permit was granted.
The -learned justice who presided at the .Special Term decided that the ■ area or opening in the sidewalk beybnd a line five feet from'the building line of the premises, has been unlawfully constructed and maintained and constitutes a public nuisance and should be removed and the sidewalk restored by defendants within sixty days, and upon their failure-to remove it and restore'the sidewalk within that period, that the same may be done by the plaintiff at the expense of the defendants.. The judgment follows -the decision, and it contains an appropriate provision for further proceedings to carry the same into effect. The defendants demurred to the complaint. Their demurrer was overruled and they appealed to this court from the interlocutory judgment. ' Upon that appeal their counsel argued'the same questions whibh are discussed'by the learned counsel for the appellant who is here alone oh the present appeal.
. We affirmed The interlocutory judgment- without, deeming it necessary to write' an opinion (91 App. Div. 6.12)
The principal contention of the appellant is that this is an attempt to enforce a city ordinance- by an- injunction, and that there being an adequate remedy at law for enforcing the ordinances by imposing penalties, a court of éqitity should not taire cognizance of the action. Ordinances have.been introduced in evidence showing that -this, encroachment was prohibited and imposing a penalty for the violation. Authority for the broad contention of counsel for appellant is found in some decisions of the courts., of this and sister States (Village of Brockport v. Johnston, 13 Abb. N. C. 468; Rozell v. Andrews, 103 N. Y. 150; Village of New Rochelle v. Lang, 75 Hun, 608; City of Mount Vernon v. Seeley, 74 App. Div. 50; Village of St. Johns v. McFarlan, 33 Mich. 72); but if the viola
The appellant also contends that it has not been shown that the . sidewalk was removed and that the open area .is maintained without authority, and that, therefore, it is not a nuisance per se, and that there is no evidence to justify a finding that it is a nuisance in fact. It is quite clear that to the extent that the sidewalk is directed to.be restored by the judgment there never was any authority to • remove it or to make an open area therein. The vault is not to be closed nor is the owner’s rights under the permit granted in 1859 • and the ordinance as it then existed to ,be interfered with. The permit for the vault clearly contemplated an opening under but not through the sidewalk; and the ordinance at that time, in the light of which the permit is to be construed, expressly limited the opening to the space within five feet, of the building line. The opening beyond that distance was, therefore, unauthorized and constituted a ■nuisanceper se, and no lapse of time will deprive the public of their right to have an encroachment on a highway which does not extend to the full width and entirely cut off travel removed and the high
It follows that the judgment should .be- affirmed, with costs.
Patterson, P. j.,. McLaughlin, Houghton and Lambert, JJ., concurred. - ,
■ Judgment affirmed, with costs. .