122 N.Y.S. 1030 | N.Y. App. Div. | 1910
Appeal from an order denying an application for a peremptory writ of mandamus and dismissing the petition, “ unless and provided that if the relator bring in as additional defendants the present Owners of the offending premises referred to in said petition, permission being hereby granted to bring in said owners, an alternative writ of mandamus. directed to said defendants issue out of and under the seal of this, court commanding.them to forthwith show' why they should not be directed to remove and abate the encroachments referred to.”
- This was a notice of motion upon a petition to compel the park commissioners of the city of New York to abate a nuisance. . The petition set forth that petitioner was a citizen and for upwards of about twenty years last past owned in fee simple and resided in the dwelling house at No. 331 West Eighty-second street, New York city ; that- on or about the Í5th of' March, 1898, Clarence F. True and wife conveyed to her the piece, of real property adjoining the premises where petitioner resides, at the corner of Eighty-second street and. Riverside drive; that since the erection of petitioner’s dwelling, house and shortly after the conveyance to her of said premises and while' said True was the owner in fee simple of the several lots fronting on Riverside drive adjoining .said property, and" extending therefrom northerly to the southerly side of West Eighty-third street, the said.
Por about eleven years Mrs. Ackerman, by legal proceedings, has been endeavoring to put an end to the illegal obstruction of a public street, caused by the erection upon • Riverside drive on land adjacent to hers of houses whose front walls project beyond the building line. (Ackerman v. True, 56 App. Div. 54; 71 id. 143; 175 N. Y. 353; 120 App. Div. 172.) In the. case in the Court of Appeals, that court unanimously held: “ That this encroachment upon the street was a public nuisance, and that as to the plaintiff it was a private nuisance, we have no doubt. *.. * * It becomes obvious, we think, that the plaintiff was entitled to maintain .this action not only for the purpose of abating the nuisance, but also to recover any damages she .might have sustained, by reason of the wrongful acts of the defendant in constructing and maintaining this encroachment upon the street.” .
It-might be supposed that, with this emphatic. declaratiop of her rights by the court of last resort she was in a fail, way to obtain the
It is.claimed that the difficulty foreshadowed by the court has proved a real one, that notwithstanding the strenuous efforts of the plaintiff to obtain a judgment against the actual owner of the property, every time she brings the case on for trial it is discovered there has been a further change of ownership and the proceedings must be begun de novo-. She has now applied to the public authorities, having jurisdiction over the street, whose duty it is to prevent and remove encroachments thereon, to do their duty, and upon their refusal to act has invoked the power of the court to compel these public officials to perform their plain duty by mandamus.
In People ex rel. Winthrop v. Delany (120 App. Div. 801; affd., 192 N. Y. 533) we compelled by mandamus the corporation counsel to perform the duty imposed upon.him by law of instituting the necessary proceedings to obtain the appointment of commissioners in a street closing case. In People ex rel. Cross Co. v. Ahearn
In City of New York v. Rice (198 N. Y. 124), which was an action to restrain the defendant from maintaining and to compel him to remove a masonry wall about his property at the southeast corner of Eighty-ninth street and Riverside drive, which had been constructed beyond the house or building line and upon the public streets aforesaid, the Court of Appeals affirmed the judgment and held that any erection of permanent and substantial structures on the street not for a public use would constitute an encroachment or obstruction and would, therefore, be a public nuisance, and said: “It may be further observed that in the present case it is the city which is invoking the aid of the courts in undoing that which has been illegally done. Our decision of Ackerman v. True has been followed in several well-considered opinions by the Appellate Division of the Supreme Court and its authority should not now be questioned. (See City of New York v. Knickerbocker Trust Co., 104 App. Div. 223; McMillan v. Klaw & Erlanger Constr. Co., 107 ib. 407; Williams v. Silverman Realty & Constr. Co., 111 ib. 679; Hatfield v. Straus, 117 ib. 671; People ex rel. Cross Co. v. Ahearn, 124 ib. 840.) ”
Mo questions of fact are raised by the answering affidavits and it seems to us the petitioner has established a clear legal right and the court ought to compel the respondents to do their duty.
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for a peremptory writ of mandamus is granted, with ten dollars costs.
Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.