Green v. Miller

• Decision Date: 19 July 1928
• Citation: 249 N.Y. 88,162 N.E. 593
• Parties: GREEN v. MILLER, President of Borough of Manhattan.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 88

162 N.E. 593

GREEN

v.MILLER, President of Borough of Manhattan.

Court of Appeals of New York.

July 19, 1928.

Application for mandamus by Joseph I. Green against Julius Miller, as President of the Borough of Manhattan. From an order of the Appellate Division (223 App. Div. 832, 228 N. Y. S. 806), affirming an order of the Special Term, which granted a motion for a peremptory order of mandamus, defendant appeals.

Reversed, and petition dismissed.Appeal from Supreme Court, Appellate Division, First Department.

George P. Nicholson, Corp. Counsel, of New York City (Elliot S. Benedict, Benjamin Millstein, and J. Joseph Lilly, all of New York City, of counsel), for appellant.

A. Norman Somers and Joseph I. Green, both of New York City, for respondent.

ANDREWS, J.

The president of the borough of Manhattan has been ordered to serve notice upon the owner of a building ordering her to remove certain alleged street encroachments which are said to extend beyond the building line. What they are is stated with particularity. One, for instance, is a box stoop ‘extending at right angles from the building line on Lexington avenue, about 7 feet on both sides thereof into the public highway on Lexington avenue, said box stoop being about 16 feet wide and 10 feet high.’ Another is a bay window described with equal minuteness. If these structures are not then removed by the owner, Mr. Miller is directed to remove them himself at her expense.

[1][2] This order is the result of an application for a peremptory mandamus made by Mr. Green as a citizen and taxpayer of New York. Owning, as he does, adjoining property, he says such alleged encroachments constitute both a public and a private nuisance. Of the latter allegation we need take no notice. This proceeding would not be appropriate to protect his individual interests. But the court below, notwithstanding denials by the defendant, that the owner has in fact created a public nuisance, or apparently that her erections encroach upon the street, has assumed the commission of a wrong by her. And this, when she is not a party to the proceeding and has been given no opportunity to disprove the assertion. Should Mr. Miller tear down a portion of her building, if in fact no illegal encroachments exist, he is a trespasser. No order such as this will shield him. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522. Naturally he objects.

[3][4][5] No such order can be sustained without the presence of the owner in court. The city may at all times abate a public nuisance. No decree of the court is required. But this power rests upon the fact that a public nuisance does exist. So, too, where the official is negligent, the court doubtless may by mandamus compel him to do his duty. It will not require him to interfere with private property, however, unless concededly it is a nuisance, or unless the owner has an opportunity to be heard upon the subject.

Here we have nothing but the claim of the petitioner. This stoop or this bay window may project over the building line. The owner has not been permitted to raise this issue. They may exist with the rightful permission of the authorities. She has not said.

We know of no controlling authority for a peremptory order of mandamus under such circumstances. Indeed, many cases in this state and elsewhere are to the contrary. People ex rel. Cooke v. Stewart, 77 App. Div. 181, 78 N. Y. S. 1054;People ex rel. Title Guarantee & T. Co. v. Ruoff, 159 App. Div. 819, 145 N. Y. S. 80;People ex rel. Francis v. Common Council, 78 N. Y. 33, 34 Am. Rep. 500;People ex rel. Bacon v. N. C. Ry. Co., 164 N. Y. 289, 58 N. E. 138;Louisiana v. Jumel, 107 U. S. 711, 727, 2 S. Ct. 128, 27 L. Ed. 448;Kent v. County Com'rs of Essex County, 10 Pick. (27 Mass.) 521; State ex rel. Sheridan v. Van Winkle, 43 N. J. Law, 579; People ex rel. Cropsey v. Townsend, 218 N. Y. 615, 112 N. E. 384. In People ex rel. Ackerman v. Stover, 138 App. Div. 237, 122 N. Y. S. 1030, certain obstructions had been already declared a public nuisance by this court in an action brought against the owner.

But we find even more serious difficulty with this order. We are told that an encroachment over the street line, even the slightest, is a public nuisance. No revocable license may be given for its maintenance. Any taxpayer may compel the authorities to abate it. If so, the consequences are far reaching, and we hesitate to come to such a conclusion without the most careful thought.

[6] We are not met here with a municipal order requiring all structures to be set back to the street line. Doubtless, the city may revoke any license it may have given. But it makes no objection. We are faced with the proposition that no discretion whatever exists. The city of New York may not permit any occupation whatever of the space in or over a public street.

[7][8] The title of the streets of New York is held by the city primarily in trust to promote traffic and transportation. An unauthorized use of them by individuals is illegal. But of them the Legislature has paramount control. Certainly it may allow their use for any public purpose not inconsistent with street needs-for the erection of telegraph poles (American Rapid Tel. Co. v. Hess, 125 N. Y. 641, 26 N. E. 919,13 L. R. A. 454, 21 Am. St. Rep. 764); for surface, elevated, or underground railways; for many other things. It may close them entirely, if that be wise. It may do more. It may authorize structures in public streets for private benefit, which are incident to ordinary street uses, which do not unreasonably interfere with traffic, and which have been sanctioned by long usage. An encroachment without such a permit; with it, they are such no longer. Bradley v. Degnon Contracting Co., 224 N. Y. 60, 120 N. E. 89;Matter of McCoy v. Apgar, 241 N. Y. 71, 148 N. E. 793, 42 A. L. R. 973;Wormser v. Brown, 149 N. Y. 163, 43 N. E. 524.

[9] It is to be observed, however, that we deal solely with the authorized occupation of the street, regarded as a public nuisance. If such occupation is injurious to private rights, as to them the legislative power does not extend. Cogswell v. R. R., 103 N. Y. 10, 8 N. E. 537,57 Am. Rep. 701;Ackerman v. True, 175 N. Y. 353, 67 N. E. 629; Bradley v. Degnon Contracting Co., supra.

[10] The Legislature, having the power to permit as against the public such uses of the street, may confer it upon the city of New York. Matter of McCoy v. Apgar, supra; People ex rel. City of N. Y. v. N. Y. Rys. Co., 217 N. Y. 310, 112 N. E. 49;Hoey v. Gilroy, 129 N. Y. 132, 29 N. E. 85; Wormser v. Brown, supra; Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373.

The ultimate question, therefore, is whether such power has been in fact given to the city, for the opinion below states that the bay windows, areaways, and stoop complained of were erected by municipal consent granted in 1882. Further, it fails to appear that the remaining structures have not existed for such a period that the like consent is to be implied.

[11] The Greater New York Charter says that streets and other public places in the city shall be inalienable. Section 71 (Laws 1901, c. 466). No local authority may grant the right to occupy them permanently. Ackerman v. True, 175 N. Y. 353, 67 N. E. 629. The most it may give is a license, revocable under proper conditions, if that power be elsewhere conferred upon it. And the same thing was true before this express prohibition. There was never authority permitting the city to alienate any part of its streets.

[12] A revocable license, however, is a different matter. For many years the streets have been bounded by a so-called building line. The location of this line appears on an official map. Charter, § 438 et seq. For many years also some private use of street areas has been permitted. Stoops, steps, areaways, cellar openings, vaults, awnings, bay windows, cornices connected with adjoining buildings, and not unreasonably interfering with traffic, have all existed. As they must be removed on demand of the city in actions for specific performance, the existence of many have been held to make the title to the adjoining building unmarketable; but their presence has not been supposed to create a public nuisance whose removal would be compelled by the courts at the instance of any taxpayer.

[13][14][15] Nor do they create such a nuisance if erected by permission of the city. In construing the charter we are not to forget longcontinued custom and practice. We are to remember that a city has not only the powers specifically conferred, but also such as are necessarily incident to or as may be fairly implied from those powers. Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490. General control of the streets is given to the board of aldermen. Charter, § 50. It may regulate their use for signs, awnings, and other purposes, and the existence of ‘stoop lines' is recognized. There is also reference to ‘authorized structures, encroachments, or obstructions' therein, and the issuance of revocable licenses therefor. ‘Stoop lines' were no innovation. Consolidation Act, § 86. All powers and duties of the common council or aldermen of the several corporations united to form the greater city, possessed by them in 1897, unless otherwise provided by the charter, are conferred on the new board. Section 42. This board may adopt such ordinances as to buildings as it may think necessary and proper for the good government, order, and protection of property...