174 A.D. 661 | N.Y. App. Div. | 1916
The action is for a mandatory injunction requiring the defendant to fill up what the complaint denominates as a vault in front of property owned by said defendant in East Seventy-ninth street in the city of New York. The facts as developed upon the trial are somewhat different from those which have been presented in any of the reported cases relating to the creation and maintenance of vaults in the city of New York. East Seventy-ninth street is a wide street and, in laying it out the city acquired sufficient space for a sidewalk thirty feet on each side of the street. Only fifteen feet of this space on each side, however, are actually used for sidewalk purposes, the remaining fifteen feet being permitted to be used by the owners of the abutting property for court yards, subject to the reserved right of the city to revoke the permission for such use. The ordinance granting permission for such use was adopted on July 17, 1855, and applies to the street from Fifth avenue to the East river. It is similar to and expressly refers to the court yard ordinance affecting Fifth avenue which was considered by this court in City of New York v. Knickerbocker Trust Company (104 App. Div. 223). The language of the ordinance is: “That the sidewalks of Seventy-ninth Street between Fifth
A similar excavation as this was considered by the Appellate Term of this court in City of New York v. Beuk (43 Misc. Rep. 663). The claim was there made by the city that it constituted a “vault” as defined by the ordinances and that it could not be lawfully erected or maintained unless a permit therefor as a “ vault ” had been applied for and issued. This contention was overruled by the. Appellate Term in a carefully considered opinion. That decision was rendered in 1904, and
The defendant purchased the house in question in 1911, and made certain alterations therein, and among other things altered it from a “ high stoop ” to an “English basement,” in doing which he removed the stoop, filled in over the excavation to the sidewalk level and made a cement or concrete walk from the fence line on the sidewalk level, over the excavation complained of, to the entrance to the building. This left an open space under the concrete sidewalk running out nearly to the fence line, and still surrounded by the same walls which had theretofore served as supports "to the stoop.
It is the claim of the city that, even conceding that this space while the stoop remained intact was.not a “vault” and was not unlawful, it became a “vault” and unlawful as soon as the stoop was removed, and the space itself covered over, and that it is the duty of defendant to fill it up, or at least to apply for and procure a permit as if for the construction of a new vault. With this contention we are unable to agree. Holding, as we do, for the reasons above stated, that the excavation was lawfully constructed in the first instance, we cannot hold that it became unlawful and a public nuisance upon the removal of the stoop and the carrying of the walk over the excavation, for it seems to be the rule that such an excavation, lawful when made, may be lawfully continued and maintained without further permit. (Title Guarantee & Trust Co. v. City of New York, 205 N. Y. 496.) One circumstance which seems to differentiate this case from all or nearly all of those cases which deal with the question of vaults- in the public streets, is that they have dealt with vaults constructed under that part of the street which is actually used for street purposes. Here the excavation is wholly under that part- of the
The judgment appealed' from is affirmed, with costs.
Laughlin and Smith, JJ., concurred; Clarke, P. J., and Dowling, J., dissented.
Judgment affirmed, with costs.