Hoey v. Gilroy

• Decision Date: 01 December 1891
• Citation: 129 N.Y. 132,29 N.E. 85
• Parties: HOEY v. GILROY, Commissioner, et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 132

29 N.E. 85

HOEY

v.GILROY, Commissioner, et al.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from common pleas of New York city and county, general term. Reversed.

Action by John Hoey, as president of the Adams Express Company, against Thomas F. Gilroy, as commissioner of public works, and Michael F. Cummings, as superintendent of incumbrances, of the city of New York, to restrain defendants from removing a certain structure owned by plaintiff, which defendants allege to be an encroachment on a public street. Plaintiff obtained judgment, which was reversed by the general term. Plaintiff appeals.

PECKHAM, J., dissenting. 14 N.Y. Supp. 159 reversed.

Wm. D. Guthrie, for appellant.

Ira D. Warren and D. J. Dean, for respondents.

O'BRIEN, J.

The plaintiff brought this action as president of the Adams Express Company, an incorporated association composed of more than seven persons, to enjoin the defendants from removing an awning or structure in front of the place of business used by the plaintiff's company in the city of New York. The defendants are the public officers of the city having power to remove obstructions unlawfully placed or kept in the public streets of the city. The special term sustained the action, and enjoined the defendant from removing or interfering with the structure, but the general term has reversed the judgment. It appears from the findings that the Adams Express Company occupy a building at the corner of Broadway and Great Jones street in the city of New York for the transaction of their business. The building is 40 feet wide on Broadway and 130 feet deep on Great Jones street. The company had erected and maintained for some time prior to the commencement of this action, in front of its premises on Great Jones street, a permanent iron structure 110 feet in length and 19 feet in width, covering the whole sidewalk, and extending over the curbstone about 12 inches. The roof was constructed of light corrugated iron, supported by iron columns about 3 1/2 inches in diameter, placed about 12 feet apart, and next to and along the inside of the curbstone; the lowest point of the roof being about 10 feet above the sidewalk, the iron columns being imbedded in the soil of the street. The authorities of the city having charge of the streets notified the company to remove the structure, and on the neglect or refusal of the company to comply with the notice the defendants were about to remove it, when they were enjoined in this action. The learned judge who gave the opinion of the court at general term has very clearly shown that, according to the general rules of law, this structure constitutes an encroachment upon the street, and is, as to the public at least, an obstruction; but the question here is whether it is an authorized or an illegal structure.

The legislature, by virtue of its general control over public streets and highways, has the power to authorize structures in the streets for the convenience of business that, without such authority, and under the principles of the common law, would be held to be encroachments and obstructions. This power it may delegate to the governing body in a municipal corporation; and the most important question in this case is whether the power to authorize this structure has been so conferred upon the authorities of the city of New York. That depends upon the construction to be given to that part of the consolidation act which ennmerates and specifies the powers conferred by the legislature upon the common council in that regard. That portion of the act which is material to the question now under consideration is as follows: ‘Sec. 86. The common council shall have power to make ordinances, not inconsistent with law and the constitution of this state, and with such penalties as are prescribed in the last section, in the matters and for the purposes elsewhere especially granted, namely: * * * (4) To prevent encroachments upon and obstructions to the streets, highways, roads, and public places, not including parks, and to authorize and require the commissioner of public works to remove the same; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same, but may...