59 How. Pr. 277 | N.Y. Sup. Ct. | 1880
The application in this case is for a writ of peremptory mandamus requiring the removal of obstructions in Forty-second street, between Eighth and Ninth avenues.
The. applicant is a physician having his residence and office at 303 West Forty-second street, which is about ■ seventy-five feet west of the Eighth avenue; and since the 6th of June, 1879, vendors of various articles have occupied this portion of Forty-second street from 6 o’clock until 12 in the evening, with horses, wagons, merchandise, and assistants, for the purpose of selling their property. It appears by the affidavit of the applicant that the street, at this point, has been occupied by about fifty of these vehicles, selling various descriptions of produce—meat, fish and other goods—to persons resorting to that locality for' the purpose of making their purchases. The vehicles, together with the patrons, appropriate so much of each side of the street and sidewalks as.to prevent their free use and enjoyment by persons having occasion to pass along them. The vehicles are backed up to the walks and the articles exposed for sale in them, and purchased by persons standing upon the walks. The obstruction occasioned in this manner is shown to have been so great as seriously to impair and interfere with the enjoyment of the applicant’s property. He is unable to approach or leave it with his own vehicle, and prevented by the noise and disturbance of the street from properly practicing his profession;
To permit the street to be occupied and obstructed in this manner was clearly unlawful. It not only prevented its use and enjoyment for the ordinary purposes for which it is maintained but also deprived the owners and residents upon it of the complete and beneficial use and enjoyment of their own property; 'as to them the obstruction was substantially a nuisance, and a party suffering special injury from it has a right to appeal to the courts for redress.
That might probably have been secured by means of an indictment, or, to a certain extent, by an action for damages; but these remedies were somewhat doubtful in their nature and would not afford that immediate assistance which the residents upon the street had the right to require. For that reason the application for the writ of mandamus has been made requiring the officers of the city having supervision of the streets to interpose and remove these obstructions. These officers have been requested to exercise their authority to secure this result, but they have declined to do so for the reason that it was supposed that the resolution of the common council legally permitted this use to be made of the streets.
One of the officers to whom this application was made was
These two provisions confirm the construction already given to those contained in the preceding section, for they were enacted in such terms as to indicate the unlawful character of obstructions of this nature, and they render their removal by the commissioner of public works and the superintendent of incumbrances a positive and unqualified duty. They have the authority, and, in addition to that, are required to use it by removing incumbrances; and as these obstructions in this street have been maintained and continued without lawful authority it was their duty to remove them, notwithstanding the existence of the resolution adopted by the common council, for that resolution was in conflict with the provisions of the charter upon this subject and consequently invalid. Where ministerial officers like these are charged with the performance of a duty which any citizen is interested in having performed, and has a right to insist on its being performed, the officer may be required to act by means of the writ of mandamus. In this case the officers have no discretion, but the statute is plain and mandatory, and it is their duty, under its provisions, to remove these obstructions existing in the street, and the writ of mandamus is an appropriate means through which they may be required to exercise their authority and perform this duty (2 Crary Sp. Proceedings [2d edition], 556).
This writ may be allowed whenever a party has a legal right and is entitled to a specific remedy to enforce it, and a
Although, as a general rule, a mandamus will not issue where the party has another remedy, it is not universally true in relation to corporations and ministerial officers, for while they may be liable in an action for neglect of duty, they may still be compelled by this writ to exercise their functions according to law (McCullough agt. The Mayor, 23 Wend., 458). Under the principle maintained by these authorities this applicant appears to have just legal grounds to support him in this application. The obstruction is unlawful; it has been specially injurious to him as an occupant of property, and no legal authority for its creation or continuance exists. It has been made the duty of the officers proceeded against to remove it, and in that manner to restore the street to the state of usefulness and convenience it was designed to afford.
They have refused to perform that duty, and as the applicant has a right to insist on its performance he is entitled to this writ for the purpose of setting these .officers in motion, and securing that degree of redress in the premises which he