144 N.Y.S. 494 | N.Y. App. Div. | 1913
Lead Opinion
By this action the plaintiff as lessee and operator of a large hotel in the city of New York calls in question the validity of an ordinance recently adopted by the board of aldermen of the city of New York authorizing the establishment of public hack stands in the city of New York. The general authority of the municipality to regulate hacks and haekmen and to establish hack stands is not questioned. Plaintiff, however, insists that the ordinance in question is not only unreasonable as to it, but actually invades and impairs its property rights as an abutting owner upon a public street. The particular provision of the ordinance to which the plaintiff objects reads as follows: “Article 5. * * * The Mayor is hereby authorized to locate and designate as public hack stands
Dissenting Opinion
I concur with Mr. Justice Scott, as I think that so far as the ordinance attempted to establish cab stands in the public streets it was not authorized by the Legislature, and that such a use of the streets in front of and abutting on the private property involved an impairment of the abutting owner’s easement in and right to the unobstructed use of the street in front of its property. If anything is now settled in this State it is that an abutting owner has an easement in the street in front of his premises of light, ah- and access, which neither a private individual nor the public can appropriate without his consent and without compensation. This right has been enforced in a variety of cases, where it has been sought to establish in the street, without the consent of the abutting owners, any structure or use which appropriates this easement or interferes with the free and unrestricted right of the owners to use the street, and notably so in the cases involving the right of
See Laws of 1901, chap. 466, § 50, as amd. by Laws of 1905, chap. 629.— [Rep.