Callanan v. Gilman
Decision Date | 29 November 1887 |
Citation | 14 N.E. 264,107 N.Y. 360 |
Parties | CALLANAN and another v. GILMAN. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
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.
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:
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:
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:
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:
In Mathews v. Kelsey, 58 Me. 56, the court said:
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 sidewalk in front of the defendant's store. Goods were taken to and from the...
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...(discharge of fireworks in a busy highway in the midst of a large city where a large number of people are assembled); Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264 (1887) (blocking the sidewalk for four or five hours out of each business day); Hoover v. Durkee, 212 A.D.2d 839, 622 N.Y.S.2d ......
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National Ass'n for the Advancement v. Acusport, Inc., 99 CV 3999 (JBW) (E.D.N.Y. 7/21/2003)
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