Flynn v. Taylor

• Decision Date: 06 October 1891
• Parties: FLYNN v. TAYLOR.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 596

28 N.E. 418

FLYNN

v.TAYLOR.

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal by defendant from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered upon the decision of the court without a jury. Affirmed.

Action to recover damages for creating a nuisance, and to restrain its further continuance. Sackett street is a public street in the city of Brooklyn, 60 feet in width, and used by several thousands of pedestrians every day. During and prior to the year 1887 the defendant owned a parcel of land, with a frontage of about 140 feet, on the south side of said street, on which there was a large building covering the whole lot, where he carried on the business of manufacturing saleratus and other articles of domestic consumption. At the same time the plaintiff owned certain premises on the same side of said street, about 80 feet further west, but in the same block, where he kept a retail liquor store. Several years prior to the commencement of this action the defendant, with the consent of the city authorities, erected on the sidewalk in front of said factory a platform 90 feet long, 2 feet 10 inches high, and 4 feet 8 inches wide. Said platform projects its entire width across the sidewalk, and is used by the defendant for loading and unloading trucks, which for that purpose stand several hours each day upon that part of the sidewalk that is not covered by the platform. The sidewalk and street, together with the bridge over the gutter between are well paved, and on the same level, and there is usually no difficulty in walking around the obstructions on the sidewalk by going out into the street. While the trucks are standing across the sidewalk backed up to the platform for the purpose of receiving or discharging a load, the horses are generally turned around parallel with the building, to enable pedestrians to pass around over the carriage-way through the street. There are two railway tracks in the street, and the nearest rail is about eight feet from said sidewalk. The defendant also has platform scales on the sidewalk at one end of his factory, that he uses for weighing coal in such a manner that the scales, coal-carts, and horses attached sometimes occupy the entire width of the sidewalk. The platform of the scales is on the same level as the pavement, and forms a part thereof, and when not in use presents no obstacle to passers by. Sackett street is a thoroughfare to the Hamilton-Avenue ferry, and is used mainly for business purposes in the neighborhood in question. The defendant has no access to his factory, except from said street and across said sidewalk. The platform is a permanent obstruction, and the other obstructions named occupy the sidewalk on the average about 3 1/2 hours each day. When the horses and trucks are on the sidewalk, pedestrians are compelled either to climb over the platform or walk around through the street. Owing to said obstructions, travel was to a certain extent diverted from the sidewalk in front of plaintiff's premises to the opposite side of the street, where there was a good walk, free from obstacles. The trial court found that the passage of the public along said sidewalk was thus unnecessarily and unreasonably interrupted and interfered with by the defendant, and that in consequence thereof the rental value of plaintiff's premises had been diminished, and he had sustained special damages to a nominal amount. Judgment was ordered for the damages so found, and for an injunction restaining the defendant ‘from unnecessarily or unreasonably obstructing the side walk’ in front of said factory, but a stay of proceedings for three months was directed, to enable him to change the arrangement of his premises, if he so desired.

Frederick C. Dexter, for appellant.

Josiah T. Marean, for respondent.

VANN, J., ( after stating the facts.)

The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the necessity of the case. Two facts, however, must exist to render the encroachment lawful: (1) The obstruction must be reasonably necessary for the transaction of business; (2) it must not unreasonably interfere with the rights of the public. Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264; Welsh v. Wilson, 101 N. Y. 254, 4 N. E. Rep. 633. The foundation upon which the exception seems to rest is that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. Any unnecessary or unreasonable use of a street, however, is a public nuisance, and is declared by statute to be a crime against the order and economy of the state. Pen. Code, § 385. A remedy for the wrong against the public may be found in the indictment of the offender, or in a suit by the proper officer in behalf of the people to compel him to abate the nuisance. People v. Loehfelm, 102 N. Y. 1, 5 N. E. Rep. 783; People v. Horton, 64 N. Y. 610;People v. Cunningham, 1 Denio, 524;Attorney General v. Cohoes Co., 6 Paige, 133; Wood, Nuis. § 729; Will. Eq. Jur. (Potter's Ed.) 389, 401. Whenever any...