People ex rel. Mullen v. Newton , 20 Abb. N. Cas. 387 ( 1887 )

Patterson, J.

In the elaborate brief submitted by the corporation counsel, it is conceded that the meat rack in question is a nuisance, and the only subject necessarily to be considered is whether this court shall compel the commissioner of public works to remove it.

It is argued that there are thousands of nuisances in the public streets, and that if this court undertakes to direct the commissioner to abate them, he will require the aid of an army of employees, and the city will be put to a heavy expense, which must be borne by the taxpayers, and the suggestion is advanced that in a case where a private person complaining has a clear remedy against the individual maintaining the nuisance he should be left to that remedy, and the court should not exercise its discretion to direct the public officer to act. In the decision of these questions and in the exercise of its discretion the court should not go outside4 of the papers before it, nor have regard ro mere general asseverations of the inconvenience public officers may be put to in carrying out the mandate of the court in the attempt to rid the city of admitted nuisances; but there is here only the simple question of the suppression of this particular nuisance. Why should it not be suppressed ? The argument of inconvenience and expense to the city cannot prevail until it is shown that by reason of the multitude of these applications, actually made, the commissioner of public works is without force of men or supplies of money to enable him to enforce the direction of the court. This is not made to appear on the present application.

The motion for a mandamus is granted.^*

* The body of the mandamus issued was in the following form:

“ Whereas it appears to us by the relation of the petitioner, T. F. M., that said petitioner is a merchant engaged in the paper-hanging and painting business at No. 614 Third Avenue, on the west side of said avenue, and that meat racks with iron rests or poles running from said meat racks in the sidewalk are attached to and project from the adjoining premises No. 612 Third Avenue, being the premises next adjoining the petitioner’s on the south, and partly covering the sidewalk appropriated to the public, and that said meat racks obstruct the view of people coming along Third Avenue on the west side to the windows of the said relator's said store, and that said meat racks encroach upon the public street and are a public nuisance.

“ And it further appearing that the said J. N., commissioner of public works, lias been duly notified and requested by the said relator to remove such obstructions from said premises, and from said portion of said street and sidewalk, and to exercise the lawful power and authority vested in him to prevent a farther use and occnpancjr of said portion of said avenue or sidewalk, by such obstructions, in the manner aforesaid, and to keep said portion of said sidewalk free and clear of the obstructions and encumbrances aforesaid, with which request the said defendant J. N. has wholly neglected and failed to comply, as appears by the relation of said T. P. M., and which complaint we have adjudged to be true as appears to us of record.

“ Now. therefore, we command you that you henceforward remove and keep removed from in front of the premises, No. Avenue, and from said portion of said sidewalk, the meat racks and rests or poles attached to. t-he same obstructing said sidewalk, and to exercise the lawful power and authority vested in you as such commissioner of public woiks to the city of New York, to keep said portion of said sidewalk and the front of said premises free and clear from the obstructions and encumbrances aforesaid, and to prevent the erection, of said meat racks and the occupancy or obstruction of said portion of said avenue or sidewalk by the placing or erection thereon of meat racks, poles, rests or other articles.

“ And in what manner this our writ is executed make appear to our Supreme Court at its Special Term, appointed to be held at the Chambers thereof in the County Court House in the City of New York on the 30th day of April, 1887, then and there return this our writ according to the provisions of title 2 of chapter lb of the- Code of Civil Procedure.

“ Witness, etc.”

“ E. P.”