The fact that the defendant has adopted an ordinance providing a method for the removal of vessels sunken at any of the docks of the city does not charge it with the duty of enforcing the ordinance, nor make it liable for its non-enforcement. Section 44 of title 3 of its charter (chapter 298, Laws 1883) reads as follows: “Nothing contained in this act shall be so
An ordinance in excess of the legislative power of the common council is void. This ordinance, so far as it directs the sale of private property, 'is therefore void. It is urged that the sunken canal-boat was a nuisance, in that it obstructed navigation. No doubt it was, and, if there was no other practicable way to abate it except by its destruction, it might have been destroyed. But whoever undertook to act for the public, and to destroy it, must be prepared to show that he did it under the requirement of a great and overruling public necessity; Hicks v. Dorn, 42 N. Y. 47. So far as the case shows, the necessity for its destruction was rather private than, public. It injured the business usually coming to the plaintiff’s dock. People v. Corporation of Albany, 11 Wend. 539, is cited. It was there held that the city was indictable for not abating a public nuisance, injurious to the public health, caused by the accumulations in the Albany basin of noxious substances. The court cited the act of 1826, and held that the city had the power to cleanse the basin, and it was therefore its duty tó do it, if that act was necessary to protect the public health. But the court held that the city had no power to destroy a bulk-head, which was private property, but which by its situation caused the noxious materials to settle in the basin instead of being carried along by the current. The bulk-head was no nuisance, though the cause of one. In such a case it is obvious that, if the public authorities do not abate the nuisance, it will remain unabated. There is a plain, difference between the protection of the public health and the protection of the plaintiff’s business from accidental obstruction; it may be the duty of the government to provide for the one, and of the plaintiff to provide for the other. But, in the case of a public nuisance injurious to health, we do not think that an individual whose health becomes thereby impaired can maintain an action-against the city for the medical expenses he incurs and the loss of business