45 N.Y.S. 900 | N.Y. Sup. Ct. | 1897
The application is for a peremptory writ of mandamus to the mayor, aldermen and commonalty of the city of New York, Charles H. T. Collis, as commissioner of public works, and William
Apparently an essential allegation of fact in the petition is put in issue by the answering affidavit; and hence, probably, without reference to the merits of the application, - a peremptory writ may not issue in the first instance. Matter of Haebler v. New York Produce Exchange, 149 N. Y. 414; People v. Mayor, id. 216; People ex rel. Lewis v. Brush, 146 id. 60. But this technical difficulty should not be made the ground of decision, since a more fundamental and insuperable obstacle confronts the relator in his claim to the relief.
• “ When the remedy, by mandamus, is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced must be the relator. The relator is considered the real party, and his right to the relief must clearly appear. But where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result.” 14 Am. & Eng. Ency. of Law, 218, and citations in note 3.
The petition purports to exhibit an invasion of a public right; namely, an obstruction in a highway,- and the only interest in the proceeding alleged by the relator is as a citizen and resident of the city. But the obstruction was created by virtue of a licen'se from the municipality, granted in pursuance and in the exercise of a pov. er conferred by the legislature. Subd. 3, § 86, Consolidation Act, as amended by chap. 718, Laws of 1896; That it was within the scope of the legislative authority' to sanction the structure of which the petition complains is settled by repeated adjudications of the highest tribunal in the state. Hoey v. Gilroy, 129 N. Y. 132; People v. R. R. Co., 117 id. 150, 155; Jorgensen v. Squires, 144 id. 280; Wormser v. Brown, 149 id. 163, 171.
Apprehensive, on reflection, that the structure, so far as affects the public interest, is justified by the statutory allowance, the relator, in his argument, asserts for abutting owners a property in the street which the legislature is not competent to take or injure without just compensation or due process of law. Assuming, what is contrary to notorious fact, that in ¡New York the fee of a street is in such owners, the relator fails to show that this structure impinges upon his fight or his interest. A suitor may not invoke the law to redress another’s Wrong, or to protect another’s
Motion denied, with costs.
