Cohen v. Mayor

• Decision Date: 04 June 1889
• Citation: 113 N.Y. 532,21 N.E. 700
• Parties: COHEN et al. v. MAYOR, ETC., OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 532

21 N.E. 700

COHEN et al.

v.MAYOR, ETC., OF NEW YORK.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, First department.

This action was brought by Hannah and Abraham Cohen, as administrators, to recover damages for the death of plaintiffs' decedent, which occurred by reason of a wound in the head caused by the falling of a pair of thills attached to a grocer's wagon upon him while the decedent was walking through one of the streets of the city of New York. Evidence was given on the trial tending to prove the following facts: On the morning of October 20, 1879, one Pischel Cohen was walking through Attorney street in such city, and at the same time an ice wagon was passing south through that street, and a wagon loaded with coals was coming north through the same street. A grocery wagon, without any horse attached, was standing in front of the grocery store kept by one Marks, who owned the wagon. The thills were tied up in a perpendicular manner with some kind of string; and the length of the wagon was parallel with the length of the street. For some reason the driver of the ice wagon started up his horses, seemingly for the purpose of passing the grocery wagon before the driver of the coal wagon should reach it. The street was narrow, and the ice-man's wagon caught in some way against the wheel of the grocery wagon, and turned the wagon somewhat around, so that the thills came down on the sidewalk. At that time Cohen was passing, and the iron on one of the thills struck him on the head and knocked him down, inflicting an injury upon him, from the effect of which he died the same day. The string with which the thills were fastened was a thin, common string; and they had been tied up that way for several months, but whether with the identical string used on the occasion when the accident occurred the witness could not say. The wagon was used by its owner, the grocer, as the evidence tended to show, for the purpose of facilitating the transaction of his private business; and it was in no sense a public cart. When not in actual use, the wagon was kept in the street in front of the owner's grocery store, day and night, under a permit which was granted by defendant in consideration of the payment by the owner of two dollars therefor. No law or ordinance existed which gave jurisdiction to the defendant through its common council, or through any of its officers, to license or permit such a use of the highway. Upon this evidence as to the manner in which the accident occurred the court directed the jury to find a verdict for the defendant, and the plaintiff duly excepted to such direction. The direction was given by the court bleow on the ground that the cause of the jury was the defective manner in which the thills were tied, and there was no evidence of any notice to the city as to that fact. The general term affirmed the judgment of the circuit court, and plaintiffs appeal.

GRAY, J., dissenting.

Francis B. Chedsey, for appellants.

Thomas P. Wickes, for respondent.

PECKHAM, J., ( after stating the facts as above.)

The storing of the wagon on the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public; and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose, under temporary exceptions as to deposits for building purposes, and to load and unload wagons, and receive and take away property for or in the interest of the owners of the adjoining premises, which it is not now necessary to more specifically enumerate. The extent of the right of such exceptional user was before us in the late case of Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264, and nothing more need be said regarding it here. It is no answer to the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture. If it be permanently or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets. The old cases said the king's highway is not to be used as a stable-yard; and a party cannot eke out the inconvenience of his own premises by taking in the public highway. These general statements are familiar, and are borne out by the cases cited. King v. Russell, 6 East, 427, decided in May, 1805; Rex v. Cross, 3 Camp. 224; Rex v. Jones, Id. 230; People v. Cunningham, 1 Denio, 524;Davis v. Mayor, etc., 14 N. Y. 506, 524; Callanan v. Gilman, supra. Familiar as the law is on this subject, it is too frequently disregarded or lost sight of. Permits are granted by common councils of cities, or by other bodies in which the power to grant them for some purposes is reposed; and they are granted for purposes in regard to which the body or board assuming to represent the city has no power whatever, and the permit confers no right upon the party who obtains it. As was said by Lord ELLENBOROUGH in the case of Rex v. Jones, supra, the law upon the subject is much neglected, and great advantages would arise from a strict, steady application of it. This case is a good example of its neglect. There is no well-founded claim of the existence of a power in the defendant to issue such a license. The defendant refers to sections 10 and 27 of chapter 37 of the ordinances of 1859. The former provides for an assignment by the mayor of a stand where the owner of a dulylicensed public cart may let it remain waiting to be employed, and also a stand where it may remain...