109 N.Y.S. 249 | N.Y. App. Div. | 1908
Lead Opinion
The relator is a domestic corporation and occupies the building known .as No. 210 Fifth avenue, under a lease for the term of twenty years from the 1st day of May, 1903. The premises have a frontage of twenty-eight feet two and one-seventh inches on the westerly side of Fifth avenue, commencing fifty-six feet five and one-seventh inches south of the southerly line of West Twenty-sixth street: The building on the premises is twelve stories in height above the basement. The petitioner is engaged in the sale of specialties in high grade leather goods and occupies the five lower floors of the building for the purposes, of its business, the first and second floors being used as salesrooms, and the third, fourth and fifth as stockrooms and offices. The floors above the fifth floor are divided and fitted up into apartments and are sublet. There are two entrances to the building from Fifth avenue, one at the southerly side of the front, to the salesrooms, and the other at the northerly side, to the elevator and stairs leading to the stockrooms and apartments. Between these two entrances is a show window in which the goods of the petitioner are displayed. Fifth avenue was laid out of the width of one hundred feet, pursuant to the provisions of chapter 115 of the Laws of 1807, and the city subsequently acquired title thereto for the purpose of a public street. It was thereafter opened up and used as a public highway and is still held in trust for such purposes. On the lot lying between that occupied by the petitioner and Twenty-sixth street, known as No. 214 Fifth avenue, there has stood for many years a five-story brick building, .having a frontage of about fifty-six and one-half feet on the westerly side of the avenue. The easterly face of the front wall of
The application is for the removal of these permanent structures . which are within the lines of Fifth avenue. The appellants were not originally made parties to the proceedings. They were permitted to come in on their own motion. The respondent Ahearn interposed no objection to the granting of the writ, and on the appeal he submits a brief requesting that the order be affirmed. It appearing that the respondent Ahearn, as president of the borough of Manhattan, has “ cognizance -and control,” among other things, “of the removal of incumbrances” from the public streets by virtue of the provisions of section 383, subdivision 6, of the Greater Mew York charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 383), and he having raised no question concerning his authority to act in the premises without the direction of the board of aldermen, we do not deem it our duty to inquire as to the technical meaning of the word “ incumbrances ” ór as to whether it is, as here used,'synonymous with obstructions or embraces nuisances. Mor in the circumstances do we deem it our duty to originate an
It may well be that under the - existing ordinances or with the consent of the proper local authorities, and until such ordinances be repealed or such consent be revoked, the owners and occupants of the premises have the right to erect and maintain a portico or Btoo}3 .or steps within the stoop line, so called, in the avenue as an entrance or approach to the building, and likewise the right, sub- • ject to revocation, to construct and maintain within the avenue an areaway within the stoop lines for. the purposes of light or access to the cellar or basement of the building; for those are uses Whicdi may be properly made of a public street under legislative authority, upon the theory that the abutting owner, in the exercise of his private rights as the owner of easements for light-, air and access," not common to the public, may be permitted such privileges until such time as the necessities of the public imperatively require that they shall be withdrawn. (Consol. Act [Laws of 1882, chap. 410], § 86, subd. 3, as amd. by Laws of 1887, chap. 418; Laws of 1888, chap. 115; Laws of 1896, chaps. 36, 718, and Laws of 1897, chap. 311; Id. subds. 8, 17 ; Greater N. Y. Charter [Laws of 1897, chap. 378], § 49, subds. 7, 17, as amd. by Laws of 1901, chap; 466, §' 49, subd: 7; Id. § 50, as amd. by Laws of 1901, chap. 466, and Laws of 1905, chap. 629; Hoey v. Gilroy, 129 N. Y. 132; Wormser v. Brown, 149 id. 163; Deshong v. City of New York, 176 id. 475; Jorgensen v. Squires, 144 id. 280; Babbage v. Powers, 130 id. 281; Broadbelt v. Loew, 15 App. Div. 343; affd. on opinion below, 162 N. Y. 642.) The respondents did not set up the ordinances governing thé construction of areaways, porticos, stoops or steps in public streets in connection with a building upon abutting premises, and, therefore, we are not called upon to decide whether any part
The learned counsel for the appellants contends that this proceeding may not be maintained by the relator for t-lie reason that it" should be, deemed estopped and does not show special damage. The fácts present no. element of estoppel. The relator obtained its lease prior to the' erection of these structures, but it had not taken possession thereunder. If the structures are not authorized by law they are a public nuisance and they are also a private nuisance to anybody specially injured thereby as the relator manifestly is. The relator was-not consulted with respect to the erection of these structures, and at most it observed their construction in silence. This presents no ground of estoppel. The structures, if unlawful, constitute an interference with the 3'elator’s easements and no Statute of Limitations lias run, fora grant could not be presumed until after the lapse of at least twenty years. Moreover, if the structures are unlawful, it is not essential to show that the relator is specially damaged, for any citizen has the.right to institute a proceeding by mandamus to compel the public officials to. perform their duty of removing unlawful incumbrances, obstructions and nuisances from the public streets. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.)
The appellants relied in opposing the motion upon a certain ordiance authorizing abutting owners to inclose part of the avenue for courtyard purposes. The remaining questions to be considered are as to whether this ordinance is valid, and if so, whether it authorized the structures sought to be removed by this proceeding. In 1832 an ordinance was adopted purporting to permit the proprietors of lots on Fifth avenue, between Sixth and Twenty-third streets, “to enclose a court 15 feet wide with an open .iron railing in front of their lots on each side of the avenue, the -gates of which shall hang inside, and shall likewise be permitted to place the curbstone 30 feet from the line of the avenue on each side leaving a 40 foot carriageway and 15 feet for court and 15 feet for walks on each side, provided, however, that if the said courts should here
It appears that plans of these structures were filed with and approved by the building department. It is manifest that the public officials having jurisdiction in the premises have knowingly acquiesced in the construction and maintenance of these structures in the avenue. It is common knowledge that somewhat similar structures have been erected and suffered to remain in the public streets. Although the order must be affirmed the. facts warrant the court in withholding the' writ a sufficient length of time to enable appellants to change the location of engine, boiler q¡,> maebinoiy and to voluntarily rerngyg tb§ obstructions,
Patterson, P. J.', Clarke and Houghton, JJ., concurred.
Concurrence Opinion
I concur in the result upon the ground that the common' council has no power to permit an abutting owner to encroach upon th^ . public street the fee of which is held by the municipality in trust for the public without express authority from the Legislature, and the Legislature has granted no such express authority as would justify the ordinance relied on to sustain this encroachment. I. think such action by the common council entirely unauthorized whatever its object. The jmblic are entitled to the free and unrestricted use of the streets and avenues in the city of Hew York which have been acquired by the city and are held in trust for the public use, and which have been paid for by abutting owners by assessments imposed by operation of law upon the theory that thé opening of the street or avenue would be a benefit to such abutting property. To authorize any one to appropriate the streets to private use would ' be an appropriation of próperty thus acquired and in which all the abutting owners have an interest, and certainly would require express legislative sanction.
I see no reason that justifies the court in postponing the issuance of the writ until sixty days after the determination of the appeal by the Court of Appeals. The defendant has used this pub- ■ lie property for many years withbut valid authority and I think it is time that this unauthorized use should cease.
I am, therefore, in favor of affirming the order appealed from.
Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.