149 N.Y. 163, Wormser v. Brown

• Citation: 149 N.Y. 163
• Party Name: SIMON WORMSER et al., Appellants, v. JOHN NICHOLAS BROWN et al., as Trustees, etc., and SOPHIA AUGUSTA SHERMAN, Respondents.
• Case Date: April 07, 1896
• Court: New York Court of Appeals Court of Appeals

Page 163

149 N.Y. 163

SIMON WORMSER et al., Appellants,

v.

JOHN NICHOLAS BROWN et al., as Trustees, etc., and SOPHIA AUGUSTA SHERMAN, Respondents.

New York Court of Appeal

April 7, 1896

Argued March 11, 1896.

Page 164

COUNSEL

George Hoadly and Louis W. Wormser for appellants. The finding of the Special Term that the erection of the bay windows interferes in a substantial degree with the light and air coming to the plaintiffs' house and affects the same remaining unimpaired, and not even excepted to, and without impeachment by cross-appeal or otherwise, as matter of law, leaves the defendants without any legal excuse for their acts. ( Stillwell v. M. L. I. Co., 72 N.Y. 388; Sickles v. Flanagan, 79 N.Y. 224; Hallock v. Scheyer, 33 Hun, 111; Callanan v. Gilman, 107 N.Y. 360; White's Bank of B. v. Nichols, 64 N.Y. 65; Cunningham v. Fitzgerald, 138 N.Y. 165; In re Adams, 141 N.Y. 297; Story v. N.Y. E. R. R. Co., 90 N.Y. 145; Abendroth v. M. R. Co., 122 N.Y. 1; Powers v. M. R. Co., 120 N.Y. 178.) The attempt to convert the plaintiff's property to private uses, even if authorized by legislative authority, would be unconstitutional and void, and the attempt to convert it to public uses without compensation would, in like manner, be unconstitutional. ( Kane v. N.Y. El. R. R. Co., 125 N.Y. 186; Abendroth v. M. R. Co., 122 N.Y. 1; Kellinger v. F. S. S. R. R. Co., 50 N.Y. 206; Reining v. N.Y. L. & W. R. Co., 128 N.Y. 157; Taylor v. Porter, 4 Hill, 140; In re Albany Street, 11 Wend. 149; People v. Morris, 13 Wend. 325; In re John & Cherry Streets, 19 Wend. 659, 676; Varick v. Smith, 5 Paige, 137; Embury v. Conner, 3 N.Y. 511.) Plaintiffs are entitled to the remedy they seek by injunction. ( Uline v. N.Y. C. & H. R. R. R. Co., 101 N.Y. 98; Galway v. M. R. Co., 128 N.Y. 132; Rumsey v. N.Y. & N. E. R. R. Co., 133 N.Y. 82; Pappenheim v. M. E. R. Co., 128 N.Y. 436.)

Page 165

John L. Cadwalader for respondents. The park department had complete authority to give permission to erect the bay windows in question, and has in due form exercised that authority. (Laws of 1882, chap. 410, § § 84, 86, 688; Laws of 1873, chap. 850, § 1; Hoey v. Gilroy, 129 N.Y. 132; People v. Charbineau, 115 N.Y. 433; Laws of 1888, chap. 115; People ex rel. v. B. & O. R. R. Co., 117 N.Y. 150; Jorgensen v. Squires, 144 N.Y. 280; Garrett v. Jones, 65 Md. 260; Goldstraw v. Duckworth, L. R. [ 5 Q. B. D.] 275.) The court will take judicial notice of the facts bearing upon this case. ( King v. Gallun, 109 U.S. 99; Babbage v. Powers, 130 N.Y. 281, 291; Brown v. Piper, 91 U.S. 37; Terhune v. Phillips, 99 U.S. 592; Ah Kow v. Nunan, 5 Sawy. 552; Slater v. Jewett, 85 N.Y. 61; E., C. & B. Co. v. Avery, 83 N.Y. 31; Bookman v. N.Y. E. R. R. Co., 137 N.Y. 302; Frace v. N.Y. L. E. & W. R. R. Co., 143 N.Y. 182; Skelly v. N.Y. E. R. R. Co., 7 Misc. Rep. 88.) While if there was power in the department of parks to authorize the erection of the bay windows, there is, of course, no power in the court to enjoin such erection, nevertheless, if there had been no such power so to do, and a permit had been granted, a court of equity in this case, in view of all the facts, would not grant an injunction. ( Trustees C. College v. Thacher, 87 N.Y. 317; Health Department v. Purdon, 99 N.Y. 237; Gray v. M. R. Co., 128 N.Y. 499; Clarke v. L. R. R. Co., 18 Barb. 350; Peters v. Delaplaine, 49 N.Y. 362; Welsh v. Taylor, 50 Hun, 137; 1 High on Injunc. [ [2d ed.] § 13; Woodruff v. Paddock, 130 N.Y. 618; Brush v. M. R. Co., 26 Abb. [ N. C.] 73.) The court will always endeavor to reconcile and explain any supposed inconsistencies in findings if, by so doing, the judgment may be sustained. ( Bennett v. Bates, 94 N.Y. 354; Health Department v. Purdon, 99 N.Y. 237; Green v. Roworth, 113 N.Y. 462; Sheldon v. Sherman, 42 N.Y. 484; Newman v. Frost, 52 N.Y. 422; Caswell v. Davis, 58 N.Y. 233; Meyer v. Lathrop, 73 N.Y. 315; Everson v. City of Syracuse, 100 N.Y. 577; Ostrander v. Hart, 130 N.Y. 406; Ogden v. Alexander,

Page 166

140 N.Y. 356; First National Bank v. Chalmers, 144 N.Y. 432.)

MARTIN, J.

Since the thirtieth of September, 1876, the plaintiffs have been the owners of a lot on the east side of Fifth avenue, in the city of New York, which is twenty-five feet in width, one hundred feet in depth, and upon which there is a four-story building, occupied by them as a residence. The three defendants, who are described as trustees, are the owners of two lots on the same avenue, fifty feet in front, one hundred feet in depth, which adjoin the property of the plaintiffs and extend to the southeast corner of Sixty-fifth street. Fifth avenue is one hundred feet in width, and was opened in 1838. The front of the plaintiffs' and defendants' lots is on the easterly line of the avenue and opposite Central Park. The premises in that vicinity are principally used for residential purposes, and their proximity to the park adds to the value of the property for that purpose. Several months prior to this action the defendants commenced the erection of a building upon their lots, which included two bay windows extending six feet beyond the easterly building line, but within the stoop line of the street. On the ninth of March, 1892, the commissioners of public parks granted the defendants a permit to erect such windows. The consent of the fire department was also obtained. Thereupon the defendants proceeded with the construction of their buildings and bay windows, in accordance with the permit granted. No opposition to their erection was made by the plaintiffs until the following November. This action was commenced about November 11, 1892, to restrain the defendants from erecting or maintaining the windows in question.

The trial judge found that the erection of the windows interfered to a substantial degree with the light and air coming to the plaintiffs' house and affected the same, and that they affected and interfered with certain views from its windows. But he refused to find that the view, light and air added greatly to the value of the premises, or that any obstruction

Page 167

or interference therewith was a special, great or irreparable injury to the enjoyment of the plaintiffs' premises, or that it very considerably affected the value thereof. He also declined to find that by reason of the construction of such windows the plaintiffs' premises were deprived of light and air, and of a view from the front windows, as the same had been theretofore enjoyed, or that the plaintiffs' claimed rights had been interfered with, impaired or obstructed, or that the plaintiffs would thereby suffer irreparable damage in respect of their premises. As conclusions of law he held that the commissioners of the department of public parks had full power and authority to issue the permit granted by them, and to allow the defendants to erect such windows; that they did not constitute a nuisance or unlawful structure, but were duly authorized in accordance with law, and that the plaintiffs were not entitled to an injunction restraining their erection or completion. He thereupon directed a judgment dismissing the complaint on the merits, with costs. The judgment thus directed was affirmed by the General Term of the Supreme Court, and from that judgment this appeal was taken.

The appellants contend that the department of public parks had no authority to grant the defendants the permit issued to them; that the power to grant such permit was vested in the common council alone, and, hence, that the building of the windows was wholly unauthorized and illegal. The question whether the permit issued to the defendants by the department of public parks was valid depends for its solution upon the provisions of the New York Consolidation Act (Laws 1882, ch. 410). Section 688 provides: 'The determination of the lines of curb and other surface...