Waldorf-Astoria Hotel Co. v. City of New York

• Decision Date: 09 June 1914
• Citation: 105 N.E. 803,212 N.Y. 97
• Parties: WALDORF-ASTORIA HOTEL CO. v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 97

105 N.E. 803

WALDORF-ASTORIA HOTEL CO.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Waldorf-Astoria Hotel Company against the City of New York and others. From an order of the Appellate Division (159 App. Div. 888,144 N. Y. Supp. 494)affirming an order (82 Misc. Rep. 94,143 N. Y. Supp. 279) denying plaintiff a preliminary injunction, plaintiff appeals, by permission, and the court certifies questions of law (160 App. Div. 925,145 N. Y. Supp. 1127). Affirmed, and questions answered in affirmative .

The order granting permission to appeal certifies the following questions of law to this court:

‘I. May public hack stands, as defined in the public hack ordinance, adopted by the board of aldermen of the city of New York, and approved by the mayor of said city, June 2, 1913, be located and maintained alongside the curb adjacent to the property of the plaintiff mentioned in the complaint, and known as the Waldorf-Astoria Hotel, in the city of New York, and used by the plaintiff for hotel purposes, without the consent and against the protest of the plaintiff?

‘II. Is section 3 of article 5 of the public hack ordinance, in so far as it attempts to authorize the location and maintenance of public hack stands alongside the curb adjacent to the property leased to and occupied and used by the plaintiff as a hotel, without the consent and against the protest of the plaintiff, a valid and lawful enactment?’Edgar T. Brackett, of Saratoga Springs, for appellant.

Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondents.

WILLARD BARTLETT, C. J.

This is an action to procure an adjudication that the public hack ordinance approved by the mayor of the city of New York on June 2, 1913, is unconstitutional and void, and to enjoin the defendants from enforcing the provisions of such ordinance, and from interfering with the rights and privileges previously granted to the plaintiff under prior ordinances of the city of New York relating to the same subject-matter.

[1] In cases of this character, where the appeal is from an interlocutory order by virtue of an allowance by the Appellate Division, the appeal brings up for review only the questions certified by the court below. Code Civil Procedure, § 190, subd . 2. We are, therefore, restricted to a consideration of the precise questions formulated by the Appellate Division; and it will be perceived that these questions relate to the validity of the public hack ordinance of June 2, 1913, only so far as it attempts to authorize the maintenance of a public hack stand alongside of the curb adjacent to the hotel property occupied by the plaintiff without the plaintiff's consent. It will, therefore, be unnecessary to consider many of the objections to the ordinance which were discussed in the elaborate and careful opinion of the judge who heard the case at Special Term; but we shall confine ourselves to a consideration of the question upon which there was a difference of opinion in the Appellate Division-that is, whether the ordinance was unauthorized by the Legislature so far as it attempted to establish cab stands in the public streets, and whether such proposed use of the streets, in front of private property involves an impairment of the easements of the abutting owner.

The plaintiff corporation is the lessee of the well-known Waldorf-Astoria Hotel on Fifth avenue in the borough of Manhattan, between Thirty-Third and Thirty-Fourth streets. The length of the hotel on Thirty-Fourth street is 350 feet, and the principal entrances are on that street; there being no public entrances on Fifth evenue. Prior to the enactment of the public hack stand ordinance of June 2, 1913, the plaintiff, under the authority of permits issued by the bureau of licenses in the mayor's office, had maintained hack stands on Thirty-Third street and Thirty-Fourth street for the use of its guests under arrangement with a private corporation; the pre-existing ordinances under which such permits were granted were repealed when the new ordinance was enacted; and one of the principal grounds of complaint on the part of the plaintiff is that the public hack stand designated under the new ordinance ‘will occupy the identical space now occupied by the plaintiff in furnishing such service to and for the use of its patrons and guests, thereby working irreparable harm to the plaintiff in that it will not be able conveniently and properly to continue to furnish such service to its patrons and guests.’

The proposition upon which the case for the plaintiff rests, so far as we are at liberty to consider it on this appeal, is that an abutting owner has an easement in the street in front of his premises of light, air, and access which cannot be appropriated by the public without his consent except upon the payment of just compensation. It is contended that this right is infringed in the particular case before us by the enactment of an ordinance which permits the municipal authorities without the consent of the proprietors of the Waldorf-Astoria to establish a public hack stand on Thirty-Fourth street in front of the hotel premises. This view was adopted by the two justices of the Appellate Division who dissented; while the majority agreed with the learned judge at Special Term that the right of ingress and egress assured by the law to an abutting owner was sufficiently preserved by the requirement of the ordinance that a space of 30 feet must be kept open and unoccupied by any hack in front of the principal hotel entrance. There is no disagreement in the courts below as to the proposition that the abutting owner's right of free and unimpeded access to his property cannot lawfully be invaded; the only difference between them is as to whether the provisions of the ordinance in question necessarily constitute a substantial interference with such right.

[2] The general rule applicable to the situation presented here is well stated by Judge Dillon in these words:

‘By virtue of its power to regulate the use of streets and sidewalks, and to regulate hackmen and so forth, the city council may provide for public hack stands in the city streets, and may prescribe the length of time that hackmen may stand thereat. But it is not within the power of the municipality to authorize the creation or maintenance of a hack stand of such a nature as to interfere with the ingress and egress from abutting property.’ 2 Dillon on Municipal Corporations (5th Ed.) § 1167.

See Pennsylvania Co. v. City of Chicago, 181 Ill. 289, 54 N. E . 825,53 L. R. A. 223;Donovan v. Pennsylvania Co., 199 U. S. 279, 26 Sup. Ct. 91, 50 L. Ed. 192.

[3] A brief history of the ordinance legislation in the city of New York relating to hack stands is furnished by the affidavit of an assistant corporation counsel, which shows that public hack stands in front of private property have been authorized and regulated by ordinance there from the year 1817 up to the present time. A custom which has lasted a century is pretty strong evidence that the occupation of the streets by hack stands, in a reasonable number and within reasonable limits, has uniformly been deemed an ordinary street use in New York. We are not referred to any case in an appellate court where the validity of any of these New York City ordinances...