Bates v. Holbrook

• Decision Date: 10 June 1902
• Citation: 171 N.Y. 460,64 N.E. 181
• Parties: BATES v. HOLBROOK et al.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 460

64 N.E. 181

BATES

v.HOLBROOK et al. ^*

Court of Appeals of New York.

June 10, 1902.

Appeal from supreme court, appellate division, First department.

Action by Benjamin L. M. Bates against Frederick Holbrook and others. From an order of the appellate division (73 N. Y. Supp. 417) reversing a judgment in favor of defendants, defendants appeal. Affirmed.

Parker, C. J., and O'Brien, J., dissenting.

John M. Bowers and James A. Dunn, for appellants.

Charles F. Bronn and John Delahunty, for respondent.

BARTLETT, J.

This action is brought by the lessee and proprietor of a hotel known as the ‘Everett House’ in the city of New York, situated on the northwest corner of Seventeenth street and Fourth avenue, against subcontractors engaged in the construction of a portion of the subway in the city of New York, for an injunction restraining the defendants from maintaining certain buildings which are alleged to constitute a nuisance, and to recover damages arising therefrom. The special term dismissed the complaint, the appellate division reversed the order, and the defendants come here stipulating for judgment absolute in case of affirmance.

The trial judge found, among other facts: That the hotel premises have a frontage of about 128 feet on Union Square and 168 feet on Fourth avenue, are five stories high, and contain some 250 rooms, several restaurants, a café, and a bar. That the park known as ‘Union Square,’ as designated by law, extends to the northerly limit of the prolongation of the thoroughfare which to the westward of Broadway and the eastward of Fourth avenue is known as ‘Seventeenth Street.’ That so much of Union Square as is laid out as a park is of oval shape, and so situated that there is in front of the plaintiff's hotel a paved place used as a thoroughfare for vehicles, and about 150 feet wide. That Seventeenth street east of Fourth avenue and west of Broadway is 60 feet in width; the roadway being about 40 feet wide. That the defendants are subcontractors with John B. McDonald, who is the contractor with the city of New York for the construction of the Rapid Transit Railroad in the city of New York. That the defendants, as such contractors, are constructing that portion of the subway in which this railroad is to be operated, extending from Great Jones street to Thirty-Second street, and is known as ‘subsection No. 3.’ That under a permit from the department of parks of the city of New York they have erected buildings upon the paved place in front of plaintiff's hotel, and placed therein boilers, forges, air compressors, and machinery to furnish power and appliances for the prosecution of the work under their subcontract. These buildings and appliances are erected upon the space 100X120 feet, and are inclosed with board fences. The space is so used as a storage place for tools and machinery. The power generated within the inclosure is compressed air, which is conducted along the work in pipe lines. The structure is so erected as to leave in front of plaintiff's hotel a paved carriageway of the same width as is the carriageway of Seventeenth street east of Fourth avenue and west of Broadway. That the erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted, and will, during their continued maintenance, result, in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the completion of the work upon which the defendants are engaged. That the work could be conducted practically as well, and with less injury to this particular plaintiff, if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work. That the aggregate damage produced thereby would not be lessened, and the loss which is now placed upon the plaintiff would be cast upon others. That the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities, under whose supervision and direction the work was to be performed. The proper authorities determined that the plant should be erected in front of plaintiff's premises. That they acted in good faith, and their exercise of discretion is not open to review. The trial judge filed a decision stating concisely the grounds upon which the issues were decided, as permitted by Code Civ. Proc. § 1022. Notwithstanding the trial judge found that the work could be conducted practically as well, and with less injury to this particular plaintiff, if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work, he further finds that the work is not being performed negligently, carelessly, or unskillfully, or in an unreasonable manner, and that no private rights of the plaintiff are trespassed upon by these defendants. There is no claim that the work is negligently, carelessly, or unskillfully performed, but this general finding that it is not carried on in an unreasonable manner is inconsistent with the specific finding that there would be less injury if the plant were placed elsewhere, or subdivided into smaller plants along the line of the work. The finding that the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities is clearly a legal construction of the city charter, the rapid transit acts, and the contracts of the contractor and subcontractors with the city of New York, and must be treated as a conclusion of law.

In considering whether the defendants were authorized by proper authority to construct and maintain the structures complained of, it is unnecessary to consider the power of the park department to grant this authority, as the appellants insist that the rapid transit acts empower the proper authorities to grant such temporary privileges as would facilitate the construction of the railroad; that such authorities were either the rapid transit commissioners, or the park commissioners, or both. In Laws 1892, c. 556, § 4, it is provided: ‘But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporation to facilitate such construction.’ In Laws 1896, c. 729, § 39, it is provided that the board of rapid transit commissioners, ‘for and in behalf of said city, may acquire as in this act provided, any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of owners or abutting owners, or others including rights of owners, abutting owners, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference.’ These provisions vest no power in the rapid transit commissioners or the park commissioners to erect such structures as those of which complaint is made. No direct legislative authority is pointed out warranting such invasion of Union Square or the property rights of the plaintiff. We express no opinion as to the power of the legislature to authorize such an invasion of private rights without due compensation. The maintenance of these structures cannot be regarded as the enjoyment of temporary privileges conferred by the law of 1892, already quoted. These structures in a sense are temporary, as compared with buildings substantially constructed and intended to endure for years; but they are not temporary when we consider the use of that word in this particular connection. It goes without saying that none of the structures or appliances erected in the streets of New York for subway purposes are permanent in a general sense, but they are so in a special sense when they are authorized to remain until the completion of the work. If these defendants are to be engaged three years or more in completing the work they have undertaken on their section of the subway, and if these structures are to be used, among other things, as air compressors for the entire work, then they are permanent as to this contract and the completion of the work thereunder.

Assuming the facts as found, we are of opinion that the legal conclusions based thereon are not warranted. The order of the appellate division does not state that it has reversed upon the facts, and we are, therefore, to assume that the reversal was on questions of law. Code Civ. Proc. § 1338. The learned counsel for the plaintiff narrows the discussion upon this appeal by two very proper concessions: (1) That the law is settled in this state that acts which are authorized by the express enactments of the legislature and performed in good faith upon work of a public character do not render the persons performing them liable for consequential damages unless there is an absence of due care or skill in the execution of the work. (2) That in authorizing the construction of a railroad under the streets of New York the legislature may be deemed to have authorized the performance by the rapid transit commissioners and by the contractors of such acts as are necessary to the execution of the work. These concessions embody the settled law of the state. Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195, 53 Am. Dec. 357;Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537,57 Am. Rep. 701;Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649. The plaintiff's main position is that the buildings and appliances...