160 N.Y.S. 228 | N.Y. Sup. Ct. | 1916
Pending the trial of the action, the plaintiff seeks to enjoin the borough president from issuing a permit for the removal of two frame houses now located on Avenue H in the borough of Brooklyn
The action is not a taxpayer’s action, but is brought by the plaintiff in his capacity as an abutting owner. If the intervening defendants or others sought to destroy the trees or shrubs of the parkings in question without the authority of the city, the plaintiff without question could have redress, either by enjoining the threatened acts or in an action for damages if they had taken place. Lane v. Lamke, 53 App. Div. 395; Donahue v. Keystone Gas Co., 181 N. Y. 313. And those are the authorities upon which the plaintiff relies, but they do not support his contention here made, for he now seeks to prevent a public official from granting a permit which concededly he has the power to issue (Greater New York Charter, § 383), and which it may well be his duty to issue. N. Y. Code, chap. 23, art. 13, § 144 of Ordinance; Western N. Y. & Penn. T. Co. v. Stillman, 143 App. Div. 717, 718.
The very authorities relied upon by the plaintiff - recognize that the city officials could do the act which a third party could be enjoined from doing, and that
As concededly the borough president has the power to issue the permit and as the right to move buildings through the streets of the city is clearly recognized by the Code of Ordinances, there seems to be no basis for plaintiff’s contention that the borough president should be enjoined. The rule is that public officials cannot be enjoined from performing their official duties, unless the acts threatened by them would be without authority
Even if this were a taxpayer’s action, it would not lie, for not only is there no claim that the act of the borough president would be illegal but there is no claim of any fraud or corruption or wrongdoing. Without such allegation and proof,, there is no basis for a taxpayer’s action. Talcott v. City of Buffalo, 125 N. Y. 280, 288; Rogers v. O’Brien, 153 id. 357; Sheehy v. McMillan, 26 App. Div. 140, 143.
The plaintiff would seem to be without remedy, even if the results of moving the houses should be as unfortunate and as lasting as he claims. But it is reassuring to find in defendant’s papers the affidavit of a competent landscape gardener, who states he has carefully examined the location and that it would be necessary to remove only a few of the trees and larger shrubs, and that those so removed can be replaced without injury, if the work is done by a competent person. It is true plaintiff’s papers contain the opposite contention and it might be difficult for the court, were it necessary so to do, to decide this question, unless the court’s personal experience could be considered.
The borough president sets forth fully the terms upon which the permit will be issued. This will require the houses to be moved over the parking in question at an elevation of at least three feet and that nothing shall be permitted to rest upon the parking, that the trees plants and shrubs which might be injured must first be removed, under the supervision of a competent gardener to be named in the permit, and be replaced imme diately after the passage of the houses, and that all damage done shall be immediately repaired and the street and strip of parking restored to their original
Avenue H in that section is a beautiful thoroughfare, as the photographs show and as the court personally knows. It would be regrettable if its beauty were to be lastingly lessened. There seems to be no reasonable fear of such an unfortunate result. But even if there were, the power to issue the permit exists and the borough president could not be enjoined, for any reasons stated'in the motion papers, from exercising his power.
The motion must be denied.
Motion denied.