5 N.Y.S. 672 | N.Y. Sup. Ct. | 1888
This action is brought to obtain an injunction perpetually enjoining and restraining the defendants, the mayor, aldermen, and commonalty of the city of New York, the commissioner of public works, and the superintendent of incumbrances, from removing, tearing down, or in any manner whatever interfering with, the plaintiff’s awning, erected in front of his premises, Nos. 73 and 75 Bowery, in the city of New York. An injunction was obtained in the first instance, and a motion is now made to vacate the same. I have read the numerous affidavits on the part of the plaintiff, tending to show that the awning in question is not a nuisance, and does not interfere with the public use-of the street, but I fail to find any justification in law for its existence. It is claimed that the awning was originally erected or constructed in accordance with a permit given by the commissioner of public works some time in the year 1873, but no authority is shown in the commissioner to grant' any permit for such a purpose. Subdivision 10, § 21, of the charter of 1870, vested in the common council the power to regulate the use of the streets and sidewalks for signs, sign-posts, awnings, awning-posts, and horse-troughs. This provision is continued in subdivision 8, § 86, of the consolidation act. The plaintiff does not claim that any ordinance or resolution of the common council was ever passed authorizing him to erect the awning in question, nor delegating to the commissioner of public works the right to grant a permit thereof; and, even if such a delegation had been shown, no power was vested in the common council to make it. Anderson v. Gas-Light Co., 12 Daly, 462, and cases cited.
Furthermore, it may well be doubted whether the common council would have the power, by ordinance or resolution, directly passed for that purpose, to permit the erection of such an awning as is referred to in the affidavits in this case. See People v. Kerr, 27 N. Y. 188; Davis v. Mayor, etc., 14 N. Y. 506; Kellinger v. Railroad Co., 50 N. Y. 206. In Trenor v. Jackson, 15 Abb. Pr. (N. S.) 115, the superior court held that the corporation of the city' has no poiver to sanction the erection for private purposes of awnings upon the sidewalks, which obstruct the public use of the way; that any person who sustained a private injury from the erection or continuance of a public nuisance may maintain an action therefor; and that a structure which, though not hurtful to health or noxious to the senses, interferes' with the comfort