People ex rel. Pumpyansky v. Keating

• Decision Date: 12 November 1901
• Citation: 168 N.Y. 390,61 N.E. 637
• Parties: PEOPLE ex rel. PUMPYANSKY v. KEATING, Highway Com'r.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 390

61 N.E. 637

PEOPLE ex rel. PUMPYANSKY

v.KEATING, Highway Com'r.

Court of Appeals of New York.

Nov. 12, 1901.

Appeal from supreme court, appellate division, First department.

Application by the people, on the relation of David Pumpyansky, for a writ of mandamus against James P. Keating, commissioner of the department of highways of the city of New York. From an order of the appellate division (71 N. Y. Supp. 97), reversing an order denying the writ and commanding defendant to remove a booth or stand for the sale of newspapers from the southwest corner of Sixth avenue and Twenty-Third street, defendant appeals. Reversed, and order of special term affirmed.

John Whalen, Corp. Counsel (Theodore Connoly and Chase Mellen, of counsel), for appellant.

Otto H. Droege, for respondent.

BARTLETT, J.

Two questions are presented by this appeal: (1) Has the relator, merely as a resident and citizen of the city of New York, a right to maintain this proceeding? (2) Has the municipal assembly power to grant such licenses as the one in question?

We agree with the appellate division that the relator is entitled to maintain this proceeding as a citizen; he seeking to enforce a right in which the general public is interested, to wit, that the streets of the city shall remain unobstructed and unincumbered. People v. Collins, 19 Wend. 56;People v. Board of Sup'rs of Sullivan Co., 56 N. Y. 249;Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857,37 L. R. A. 809. The relator makes no claim to a special interest, or to enforce a private right.

As to the remaining question, whether the municipal assembly had power to grant this license, the answer depends upon a construction of the consolidation act, read in connection with the Greater New York charter. The booth or stand in question was erected under a license of the municipal assembly issued on October 4, 1900, authorizing its maintenance for the period of one year. The statutory situation at that time was as follows: By section 86 of the consolidation act the common council was given certain powers to make ordinances, and by subdivision 3 of this section to regulate the use of sidewalks. The legislature (Laws 1896, c. 718) amended this subdivision by adding thereto these words: ‘And also to grant permits for the erection of booths and stands in or on the space immediately underneath the steps of stairs leading to and from the elevated railroad station, and within the curb line, for the sale of newspapers and periodicals. Provided, however, that no booth or stand, nor any projection therefrom, shall be erected which is wider than the width of the stairs under which it is placed, or which extends along the sidewalk a greater distance than to a point where the under surface of the stairs is not over seven feet from the level of the sidewalk.’ The Greater New York charter, which took effect January 1, 1898, confers (by section 49) upon the municipal assembly power to establish, modify, amend, or repeal ordinances, etc. Subdivision 3 of that section read as follows at the time the license in question was granted: ‘To regulate the use of streets, highways, roads, public places and sidewalks by foot passengers, animals, vehicles, cars, motors and locomotives, and to prevent encroachments upon and obstructions to the same, and to authorize and require their removal by the proper department; 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 repairing of a building on a lot opposite the same, nor shall they permit the erection of booths and stands within stoop lines, except for the sale of newspapers, periodicals, fruits and soda water, and with the consent in such cases of the owner of the premises.’ It will be observed that the subdivision quoted omits the addition to subdivision 3 of section 86 of the consolidation act, made by chapter 718 of the Laws of 1896, above quoted.

It is the contention of the relator that this omission indicates an intention on the part of the legislature to deprive the municipal assembly of the power to enact an ordinance authorizing the granting of permits for the erection of stands or booths under the stairways of the elevated railroad company. The special term adopted a contrary view, but the appellate division, with a divided court, reached the conclusion contended for by the relator. In the prevailing opinion below it is said: ‘It is quite evident that for the greater part of the distance no use could be made by the general public of this portion of the sidewalk, as the elevated railway structure practically excludes the use of the street for purposes of passage, and amounts to an appropriation of the space until it reaches such a height that passage under it is practicable. * * * We see no reason, therefore, why the appropriation of this part of the street for the erection of a news stand does not fall clearly within the exception, and allows the legislature to authorize the municipal authorities to grant the right to occupy this space with the structure of which complaint is made.’ The opinion then goes on to state, in substance, that the ordinance of the municipal assembly which permitted the granting of this license was unauthorized, for the reason that the Greater New York charter had failed to continue in force the provisions of the act of 1896. The municipal assembly, assuming it had the power, did enact an ordinance in May, 1899, providing in detail for the licensing of news stands under the stairways of the elevated railroad structure.

The corporation counsel, appearing for the defendant and appellant, the commissioner of the department of highways of the city of New York, insists that the Greater New York charter (section 49, subd. 3) did not repeal chapter 718 of the Laws of 1896 as embodied in the consolidation act at the time the Greater New York charter went into effect, when the following sections are read in connection with the same:

‘Sec. 1608. The act of the legislature of the state of New York, passed July first, eighteen hundred and eighty-two, known as the New York City consolidation act of eighteen hundred and eighty-two, and acts amendatory thereof, and supplemental thereto, and other acts of the legislature of the state of New York now in force relating to or affecting the local government of the city of New York, as heretofore constituted, are hereby repealed so far as any provisions thereof are...