87 N.Y.S. 214 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiff is the owner of a piece of property on the easterly side of Hudson street, between Duane and Thomas' streets, in the city of New York, upon which there had been a brick building since the year 1854. Annexed to that building there was what was described as a covered areaway, which .extended into the street, and which appears to have had a superficial area of 114.75 square feet. This covered areaway had existed continuously since 1854. In April, 1897, the plaintiff was engaged in making repairs and alterations to this building. In carrying out these improvements, he wished to-cover the areaway with an iron cover, in which were inserted small pieces of glass. Prior to these alterations this areaway had been covered with heavy planks. In making this change the planks were removed, and a contractor for the plaintiff started to place the iron frame for the new cover, when a policeman asked for a permit from the department of public works. When no permit was produced, he said that he would arrest those that worked there, because there was no permit from the department of public works. Upon the plaintiff’s being informed of this condition, he gave to his architect a check for $229.50, to the order of the department of public works, and signed an application for a permit. This application was dated April 20, 1897, and by it the plaintiff applied to the department of public works for permission
“The party or parties procuring this permit hereby agrees to keep the pavement affected by constructing the vault in good order for a period of one year from the date of filing of certificate of the completion of the work. The certificate shall be subject to revocation thereof at any time hereafter by the Commissioner of Public Works, when in his judgment the space occupied by said vault or any portion thereof may be required for any public improvements, or for violation of the terms and conditions herein.”
Upon the filing of this application and the payment of this sum of money, a permit was given by the department- of public works to the plaintiff to construct a vault in front of the premises known as No. 44 Hudson street, used for business purposes, said vault to be 4 feet 6 inches in width, and 25 feet 6 inches in length, outside measurement, and to occupy 114.75 square feet, “subject to obligation to construct recess or chamber for existing hydrant or stopcock, as per annexed plan, and upon condition that the person or persons to whom this permit is granted will in all' respects comply with the corporation ordinances relative to vaults, cisterns and areas,” and upon the further condition that the permit gave no authority “and it is strictly forbidden to disturb, by excavation or otherwise or in any way damage or interfere with the proper use of any lamp-post,” or other fixture connected with the sewer or water system; and permission was also given to erect a bridge, not to exceed 5 feet in height above the sidewalk, and 10 feet in width, with steps leading to said bridge, to rest on the sidewalk of the adjoining premises during the construction of the vault; and by it the party procuring the permit agreed to keep the pavement affected by constructing the vault in good order for a period of one year from the date of filing surveyor’s certificate upon completion of the work; and the permit was issued subject to- revocation at any time by the commissioner of public works. Upon payment of this sum of money, and the receipt of the permit, the plaintiff completed the construction of the vault.
No statement was made to the policeman that the plaintiff was only engaged in reconstructing the cover to an areaway which had before been in existence; nor was there any claim made to the commissioner of public works or any other city authority that the plaintiff had any right to construct this vault or covered areaway, either under a permit before granted by the city, or by prescription, or upon any other grounds. All that appears is that the plaintiff commenced some construction in the street when he was stopped by a policeman, who, in effect, stated that, before any interference with the street could be allowed, he must have a permit from the proper city department; and, upon that notice being given by the policeman, the plaintiff voluntarily made an application for a permit to construct a vault under the sidewalk, presented that application to the proper city authorities, and was granted the permit upon payment of the sum fixed by the city for such
There was proof that the commissioner of public works had requested the police commissioners to prevent work being done without a permit on vaults 'in the public streets. Irrespective of the right of the plaintiff to construct a vault or areaway cover in front of his premises, it was not illegal for the police authorities to require persons disturbing the surface of the street, or constructing vaults in the street, to produce a permit or authority to thus incumber the street, before being allowed to continue the work. There was nothing to show that the city officers were informed that the plaintiff had or claimed a right in the street. The policeman said that he would arrest those engaged in disturbing the street unless they had a permit from the proper city authorities. He made no attempt to adjudicate upon the plaintiff’s right to construct this areaway, nor did the plaintiff or his contractor insist to the policeman that the plaintiff had a right to construct this vault. Under the charter and the ordinances of the city of New York, any unauthorized obstruction in the public streets, or interference with the surface of the streets, is a misdemeanor, and justifies a police officer in arresting those.engaged in committing the offense. It was the duty of the plaintiff to obtain a permit to use the surface of the street for the purpose of his building, and, if he had a right to a permit therefor without compensation, it-is to be presumed that, upon a statement of’ the facts to the proper municipal officers, he would have been granted the permit without payment. He did nothing of the kind. He signed an application for a regular vault permit, which, so far as appears from this record, he did not theretofore have, and which allowed him to construct in the street a vault which he had not before constructed. He had a right to make such an application for a permit, which would insure to him, by a formal, legal instrument, an undisputed right to use this street during the continuance of the permit, and to agree to pay therefor a sum of money; and the city had a right to issue the permit and receive the money. It cannot be said that what was granted to the plaintiff was nothing more than a right to continue a use to which he was entitled, and it cannot be said that the payment of this money to the city was without a consideration received by the plaintiff.
Nor can it be said that this payment was obtained from the plaintiff by duress. As before stated, there was no adjudication by the police
There is a material distinction between this case and Deshong v. City of New York, 176 N. Y. 475, 68 N. E. 880, as in that case it was proved that while the new vault was being constructed a deputy or inspector of the department of highways came to the place, stated to the plaintiff that his men must stop work, and declared that, if they continued, he would have the plaintiff and all the men who were at work, arrested, and that to avoid this arrest, and retain possession of the-property, so- that the building and its appurtenances might be completed and occupied, the plaintiff was required toi pay the sum of $914, which he did under protest. In discussing whether payment under those circumstances was a voluntary payment, the court said:
“Payments coerced by duress or unlawful compulsion may be recovered back. This coercion,' however, must be illegal, unjust, or oppressive. One of the several, and perhaps most common, instances of duress, is by threats of actual imprisonment unless the required act shall be performed. * * * If the city made the charge, and demanded its payment without authority of law, it was void; and the action of its officers in enforcing it by threats of arrest and by taking unlawful possession of the plaintiff’s property was illegal, and. payment to hyn was not so far voluntary as to prevent a recovery in this action.”
In this case there was no threat of this kind.. No inspector or official of the department of public works informed the plaintiff that he must pay this sum, or he would be arrested, nor was any possession taken of his premises. All that the policeman did was to say that the-
It follows that the judgment appealed from must be affirmed, with costs.
VAN BRUNT, P. J„ and HATCH, J., concur.
Dissenting Opinion
I dissent. The vault in question existed, without objection, so far as appears, from any one or the city, from 1853 to the time the demand' was made for the payment of the money, to' recover which this action is brought. This being so, a presumption, under the rule laid down in Deshong v. City of New York, 176 N. Y. 475, 68 N. E. 880, prevailed that it was originally constructed with the consent of the municipal authorities, and this presumption was not overcome by any proof offered at the trial. It is unquestionably true that the right of the public to the use of the streets is absolute and paramount to any other, and a presumption of consent, or even an actual consent, of the authorities to their use for private purposes, is always subject and subordinate to the rights of the public whenever required for public purposes. Here the space occupied by the vault is not sought to be taken by the city for public use, nor does the city object to the use which the plaintiff is making of it. What the city does object to is that such use shall be made of it by the plaintiff without his obtaining a permit, but the presumption is that he has already obtained a permit, and, that being so, he cannot legally be required to obtain another. People ex rel. Ziegler v. Collis, 17 App. Div. 448, 45 N. Y. Supp. 282; Deshong v. City of New York, supra.
Nor do I think it can be said that the payment made' was voluntary. After the old covering had been taken up, and while the new one was being put down, the work was stopped by a policeman, who demanded a permit, and threatened to arrest the workmen if they continued without procuring one; and in this connection it appeared that the commissioner of public works had directed that the police department be requested to prevent such work being done without a permit, and plaintiff sought
For the foregoing reasons, I think the judgment appealed from should be reversed, with costs, and a new trial ordered.
O’BRIEN, J., concurs.