184 N.E. 483 | NY | 1933
Pursuant to authority conferred by chapter 652 of the Laws of 1899 land on the Brooklyn shore of the East river was taken by the city of New York as an *34 approach to the bridge now known as the Williamsburg Bridge. As part of that condemnation proceeding in 1901, title to a strip, since denominated "New street" between Broadway and South Fourth street and bisected by South Fifth street, was acquired. The improvement included the acquisition of land for the widening of South Fifth street as well as the land for laying out New street. In condemning this strip as a passage toward the bridge and its structural approach, parts of two lots fronting the south side of old Fifth street and having access thereon were directly taken. As a result, two small fragments of these lots were left. One of these remnants is ten feet deep and now has a frontage of four feet eight and one-half inches on the west side of the thoroughfare designated as New street. The dimensions of the other, wholly interior and without frontage on any traveled way, are four feet by twenty feet and it adjoins the first one. Separately, each possessed no value. In 1928 plaintiff Morelite Service Stations, Inc., purchased these parcels and thus consolidated them in one ownership. After obtaining permits from the municipal Bureau of Buildings, it erected tanks and an office for a gasoline service station. Later, the plaintiff Zolinsky, as lessee of the property, obtained a permit from the fire department for the storage of gasoline on the premises and started to service automobiles with gasoline by means of portable tanks wheeled from these premises to the curb of the roadway. Thereafter defendant Goldman, as Commissioner of Plant and Structures, caused a fence to be erected across the front of these premises which prevents entrance and exit.
In this action for an injunction the Special Term decreed, among other things, that plaintiffs have the rights of abutting owners of light, air and access to New street, are entitled to transport gasoline in tanks across the sidewalk to automobiles at the curb and that defendant demolish the fence and be restrained from re-erecting it *35 or a similar obstruction. It made a conclusion of law that the acts of the officials of the city since 1898 have fixed the status of New street as a public street and a finding of fact that since 1903 it has been a public street. It drew also a conclusion of law and it decreed in its judgment that since 1904 New street has been a public highway. These findings and conclusions as well as the judgment were reversed and the complaint dismissed. Both the Special Term and the Appellate Division have made the conclusion of law that the title to New street vesting in the city is one of fee simple absolute for bridge purposes and have found as a fact that this territory is under the exclusive management and control of defendant Commissioner of Plant and Structures. The correctness of this conclusion and finding is not open to doubt.
That this thoroughfare, generically, is a highway cannot be successfully disputed. It is public in character and all who travel to or from the Williamsburg Bridge possess a right of passage over it. In that broad sense its nature does not essentially differ from a mountain trail, a railroad or a city street. (Sun P. P. Assn. v. Mayor,
The administration of defendant Commissioner of Plant and Structures must be reasonable and such as not to discriminate against the owner of any particular property. (Matter of Picone
v. Comr. of Licenses,
While plaintiffs are entitled to the removal of the fence, *37 they may not, against the Commissioner's judgment, obstruct the sidewalk and cause congestion of traffic at the curb. If the Commissioner, in the exercise of reasonable discretion, entertains the opinion that plaintiffs' acts in supplying automobiles with gasoline at this location block or impede the use of this passage to the bridge, he is authorized to employ reasonable methods for the prevention of the practice. If these acts constitute a nuisance, he may cause it to be abated. He is empowered to remove plaintiffs' portable tanks and their connections from the sidewalk and roadway.
The judgment should be modified in accordance with this opinion and as so modified affirmed, without costs.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, HUBBS and CROUCH, JJ., concur.
Judgment accordingly.