Callanan v. Gilman

• Decision Date: 29 November 1887
• Parties: CALLANAN and another v. GILMAN.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 360

14 N.E. 264

CALLANAN and another

v.GILMAN. ^*

Court of Appeals of New York.

November 29, 1887.

Appeal from general term of the superior court of the city of New York.

Lawrence J. Callanan and James A. Kemp, plaintiffs, filed a bill to enjoin defendant, George F. Gilman, from obstructing the sidewalk. The trial court awarded an injunction, which the general term affirmed. Defendant appealed.

John E. Parsons and Edwin M. Wright, for plaintiffs.

Henry Schmitt, for defendant.

EARL, J.

The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street, or encroachment thereon, which interferes with such use, is a public nuisance. But there are exceptions to the general rule, born of necessity and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. But it is not sufficient that the obstructions are necessary with reference to the business of him who creates and maintains them; but they must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact, to be determined upon the evidence relating thereto. A reference to a few cases will show what courts have said upon this subject.

In Rex v. Russell, 6 East, 427, where the defendant, a wagoner, was indicted for occupying one side of a public street before his warehouse for loading and unloading his wagons, the court said ‘that it should be fully understood that the defendant could not legally carry on any part of his business in the public street to the annoyance of the public; that the primary object of the street was for the free passage of the public, and anything which impeded that free passage without necessity was a nuisance; that if the nature of the defendant's business were such as to require the loading and unloading of many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises or remove his business to some more convenient spot.’

In Rex v. Cross, 3 Camp. 224, the defendant was indicted for allowing his coaches to remain an unreasonable time in a public street, and the court said: ‘Every unauthorized obstruction of a highway to the annoyance of the king's subjects is a nuisance. The king's highway is not to be used as a stable-yard. * * * A stage-coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time, and private premises must be provided for the coach to stand while waiting between one journey and the commencement of another.’

In Rex v. Jones, 3 Camp. 230, the defendant, a lumber merchant in London, was indicted for the obstruction of a part of a street in the hewing and sawing of logs, and the court said: ‘If an unreasonable time is occupied in delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house, the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience should be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict, steady application of it. I cannot bring myself to doubt the guilt of this defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway with his lumber-yard; and if the street be too narrow, he must move to a more convenient place for carrying on his business.’

In Com. v. Passmore, 1 Serg. & R. 217, the defendant, an auctioneer, was indicted for a nuisance in placing goods on the footway and carriage-way of one of the public streets of the city and suffering them to remain for the purpose of being sold there, so as to render the passage less convenient, although not entirely to obstruct it, and the court said: ‘It is true, necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But inasmuch as fuel is necessary, man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it. * * * I can easily perceive that it is for the convenience and the interest of an auctioneer to place his goods in the street, because it saves the expense of storage; but there is no more necessity in his case than in that of a private merchant. It is equally in the power of the auctioneer and the merchant to procure warehouses and places of deposit in proportion to the extent of their business.’

In People v. Cunningham, 1 Denio, 524, the defendants were indicted for obstructing one of the streets in the city of Brooklyn, and the court said: ‘The fact that the defendants' business was lawful does not afford them a justification in annoying the public in transacting it; it gives them no right to occupy the public highway so as to impede the free passage of it by the citizens generally. The obstruction complained of is not of the temporary character which may be excused within the necessary qualifications referred to in the cases cited, but results from a systematic course of carrying on the defendants' business. It is said that this business cannot be carried on in any other manner at that place so advantageously either to individuals or the public. The answer to this is to be found in the observations of the court in Russell's Case [above cited.] ‘They must either enlarge their premises, or remove their business to some more convenient spot.’ Private interests must be made subservient to the general interest of the community.'

In Welsh v. Wilson, 101 N. Y. 254, 4 N. E. Rep. 633, a case where the defendant obstructed a sidewalk in the city of New York with skids a few minutes while he was engaged in removing two large cases of merchandise from his store to a truck, in consequence of which the plaintiff claimed to have been injured while passing through the street, we said: ‘The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right, to be exercised in a reasonable manner so as not to unnecessarily incumber and obstruct the sidewalk.’

In Mathews v. Kelsey, 58 Me. 56, the court said: ‘As an incident to this right of transit, the public have a right to load and unload such vehicles, (in the street or from the street,) as they find it convenient to use. But in this respect each individual is restrained by the rights of others. He must do his work in such careful and prudent manner as not to interfere unreasonably with the convenience of others.’

Now, what are the facts of this case? Both the plaintiffs and the defendant were extensive retail and wholesale grocers, having stores near to each other on the south side of Vesey street in the city of New York, and a large portion of the plaintiff's customers, in order to reach their store, were obliged to pass upon the...