City of New York v. Knickerbocker Trust Co. , 102 N.Y.S. 900 ( 1906 )

O’Gorman, J.

This is a suit in- equity to compel the defendant to remove certain encroachments in the public highway, consisting of steps and areas at Fifth avenue and Thirty-fourth street, which appropriate approximately one-half of the sidewalk of each street. There is no substantial dispute as to the facts. The projection complained of clearly interferes with the right of the public to use the whole of the public street. It is, therefore, an unlawful incumbrance and constitutes a public nuisance. Ackerman v. True, 175 N. Y. 353; McMillan v. Klaw & Erlanger Const. Co., 107 App. Div. 407. It is a well-established doctrine that no power resides in the municipality to authorize a permanent obstruction upon a public street; and, whenever the rights of the public are menaced by an act which amounts to a public nuisance, recourse may be had to the aid of a court of equity. Village of Oxford v. Willoughby, 181 N. Y. 160; Wheelock v. Noonan, 108 id. 179. The ordinances of 1833 and 1844, permitti ng owners of property on both sides of Fifth avenue to inclose fifteen feet of the sidewalk for a courtyard, were absolutely void. Lawrence v. Mayor, 2 Barb. 577; Ely v. Campbell, 59 How. Pr. 337; O’Reilly v. Mayor, 59 id. 277. The resolution of the board of aldermen of December 10, 1901, which attempted to grant to the defendant permission to erect the porticos in front of the defendant’s building was also void and in violation of the strict prohibition contained in section 49, subdivisions 3 and 4, of the charter of 1897, and in section 50 of the charter of 1901. Ackerman v. True, supra. The acquiescence of the building department affords the defendant no immunity from its erection and maintenance of a public nuisance; nor should a court of equity withhold appropriate relief because the public suffer from the unlawful conduct of other offenders whose acts have not yet received judicial condemnation.

Judgment for plaintiff, with costs.