Mayor of New York v. Heft , 2 How. Pr. 149 ( 1885 )

Per Curiam (Present, Van Hoesen and Allen, JJ.)

It is true that this ordinance does not deprive the Department of Public Works of its power to remove encroachments, but it does attempt to take away the right to punish the person who creates the incumbrance, for it provides that no one shall be sued for placing an incumbrance on a street unless he persists in maintaining it for a certain period after he has had notice to remove it. The ordinance in effect gives to any person the right to maintain an incumbrance for any period less than ten days, for it declares that unless he maintains it for ten days after having been notified to remove it, he shall not be liable to an action.

He may maintain an encroachment on the street for nine days or nine days and a half without being liable to any action whatever, if this ordinance be valid. This cannot be. The Common Council is forbidden to permit any encroachment except the temporary occupation of such part of a street as may be adjacent to a lot on which a building is in course of construction. It is true that the ordinance does not expressly declare that encroachments are authorized, hut it does forbid prosecution of those who are guilty of encroaching. It is a familiar saying, that there can be no law without a sanction. Where a right exists there must be a way of protecting it. and of punishing those who violate it. When you take away the means of enforcing the right, you- destroy the 'very right itself. When the Common Council, therefore, ordained that a man might keep up an encroachment for any period less than ten days without being liable to an action, it virtually gave to all persons the liberty to encroach at their pleasure on the streets for less than ten days at a time.

It is argued that Justice Gedney intended to decide that the defendant did not in fact ever encroach on the street, and there are parts of the record that give color to that argumént, but other parts of the record seem to show that he meant to decide that the ordinance was valid. We think it better, therefore, to reverse the judgment, and to order a new trial, without costs.

Judgment reversed and new trial ordered.