104 N.Y.S. 1139 | N.Y. App. Div. | 1907
Dissenting Opinion
(dissenting): The action was commenced on the 7th day of November, 1902, to restrain, the defendant bank and thedefendant Stannard, who had contracted with it for that purpose, from erecting upon premises owned by the defendant bank and which adjoin premises owned by the plaintiff, both, of • 'which are situate Upon the.westerly side of Genesee street, in the city of Utica, N. Y., and abut thereon a building in such manner that the front, end thereof would project out into the street practically two feet, and to cause the removal of any por.tion constructed which so projected. The - question presented by this appeal is, may an owner of premises abutting upon a public city street, to the fee of which street he. has no title, erect a building, on his premises against the protest of the owner of adjoining premises made at or before the time such erec: ■ ' tion is commenced, so that a-substantial and essential part thereof projects into the street nearly two. feet, and justify such encroachment by the' fact' that the municipality in its discretion authorized the same under and by virtue of an act of /the.Legislature which assumed to "invest it with such , discretionary power? Or, failing in- that, may he retain what was thus:, illegally obtained by proving that the adjacent owner is not materially damaged by such unlawful encroachment? Such a rule would be unjust and inequitable; and, as it seems "to me, has not yet been approved by decision of our highest court. Practically,. the facts pertinent to the questions here for review are not dn. dispute, and where controverted it will be assumed that the-findings of fact made by the learned trial court áre Conclusive,- not being contrary to or against! the weight of the evidence. Genesee, one of the principal business streets in the city of Utica, N. Y., extends in a southerly direction from the Mohawk river to and beyond the city-limits. Its width for the entire distance from Raggs square to’the Brie canal, between Which points "the premises which are the subject of this ¡controversy are located, measured between the building lines as established and occupied fora great number of. years by the public and by the.owners of premises abutting thereon, is from ninety-
See Laws of 1832, chap. 19.— [Rep.
Amd. by Laws of 1870,- chap; 28.-^ [Ref. . .
8ie.
See U. S. Const. 14th ámendt. ,§ 1; Ohio ex rel. Lloyd v. Dollison (194 U. S. 445, 447); Munn v. Illinois (94 id. 113, 123).— [Rep.
See H. S. Const. 14th amendt. § 1; Ohio ex rel. Lloyd v. Dollison (194 U. S. 445, 447); Munn v. Illinois (94 id. 113, 123).—[Bep.
See U. S. Const. l’4th amendt. § 1; Ohio ex rel. Lloyd v. Dollison (194 U. S. 445,447); Munn v. Illinois (94 id. 113, 123). — [Bef.
Lead Opinion
.Judgment affirmed, with costs, on opinion of Rogers, J„ delivered, at Special '. Term. (Reported in 45 Misc. Rep. 15.) All concurred, except McLennan, P. J., . and Kruse, J., who dissented in ah opinion by McLennan, P. J..