Hatfield v. Straus

• Decision Date: 01 October 1907
• Citation: 189 N.Y. 208,82 N.E. 172
• Parties: HATFIELD et al. v. STRAUS et al.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 208

82 N.E. 172

HATFIELD et al.

v.STRAUS et al.

Court of Appeals of New York.

Oct. 1, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edwin F. Hatfield and others against Isidor Straus and another, doing business under the firm name of R. H. Macy & Co., and others. From an order of the Appellate Division (102 N. Y. Supp. 934,117 App. Div. 671), granting the relief prayed for, defendants appeal, and questions are certified. Questions answered, and order affirmed.

Cullen, C. J., and Chase and Haight, JJ., dissenting.Granville Clark, for appellants Straus.

Wm. B. Ellison, Corp. Counsel (Theodore Connoly, of counsel), for appellants city of New York et al.

Arthur H. Masten, for respondents.

O'BRIEN, J.

The plaintiffs in this action, as property owners, seek to restrain the defendants from carrying into effect a resolution of the board of estimate and apportionment of the city of New York, which authorizes, or purports to authorize, certain of the defendants to lay down and construct a spur railroad track in front of their premises.

The plaintiffs are residents and property owners in the city of New York. They own and occupy the house and lot at No. 149 West Thirty-Fourth street as a private residence, having resided there for many years. The defendants Isidor and Nathan Straus compose the firm of R. H. Macy & Co., and that firm occupies, as lessees, the premises on the northwest corner of Sixth avenue and Thirty-Fourth street, eastward of and immediately adjoining the plaintiffs' property, as a large department store. The other defendants are the city of New York and certain of its municipal officers having control of the streets, or whose official action in some form is necessary in order to carry out the purposes of the resolution. The immediate purpose of the action was to restrain the defendants from obstructing the street near the plaintiffs' residence by carrying into effect the permit, consent, or ordinance of the board of estimate and apportionment, which, it is claimed, permitted the proprietors of the department store to lay down railroad tracks and operate express cars thereon for the conveyance of goods to their store from the street railroad in Thirty-Fourth street. The only relief demanded in the complaint was a perpetual injunction.

In May, 1906, the firm of Macy & Co. made a written application to the board of estimate and apportionment for the consent of the city to construct, maintain, and use a single track railroad spur for the purpose of transporting express cars from their premises on the north side of Thirty-Fourth street, between Broadway and Seventh avenue, to and from the surface railroad tracks on Thirty-Fourth street in front of their premises. In July following the board to which the application was addressed passed a resolution granting such consent. The resolution so passed was to the effect that the consent of the city be, and the same was thereby, given to the said firm to construct, maintain, and use two spur surface railroad tracks; one in front of their premises in the borough of Manhattan, and the other on the east side of Webster avenue, south of McLean avenue, to the surface railroad tracks in front of said premises in the borough of the Bronx. The validity of the ordinance, so far as it relates to the spur last described, is not directly involved in this action, since no property owner or other person interested has raised any question in regard to it. The precise location of the tracks was described in the resolution in detail, and it was stated in the grant that the consent so given should be for a term not exceeding 10 years from the time of the granting thereof, and it was provided that the same might be canceled and annulled upon six months' notice in writing to the firm, its successors or assigns, by the board or its successors in authority, and thereupon all the rights of the firm, its successors or assigns, in and upon said street and avenue, should cease and determine. The resolution then proceeds to state the sums of money which the firm stipulated to pay into the city treasury from time to time as compensation for the privilege or right granted. It was also stipulated that the consent of the board thus given was for the exclusive use of the grantee, and that it should not be assigned either in whole or in part, or leased or sublet in any manner, and that no title thereto or right, interest, or property therein would pass to or vest in any other person or corporation whatsoever, either by the acts of the grantee, its successors or assigns, or by operation of law, without the consent in writing of the city acting by the said board, or its successors in authority. The various stipulations and conditions incorporated in the grant covered seven printed pages of the record, but it is unnecessary to refer to them at greater length, since the power attempted to be exercised by the board is sufficiently indicated by what has been already stated. The prayer of the complaint is to the effect that the defendants be enjoined and restrained from the execution of this ordinance or resolution.

The court granted an injunction, pendente lite, which was accompanied by an order to show cause why the same should not be continued until the final judgment in the action. On the return of this order, and after a hearing, the court or judge refused to continue the temporary injunction and ordered that it be vacated. On appeal by the plaintiffs from this order, the Appellate Division, by a divided court, reversed the action of the judge at Special Term in refusing to continue the injunction and vacating it, and that court also reinstated the temporary injunction and ordered that it be continued during the pendency of the action, and from this order the defendants have appealed to this court. No appeal lies to this court from such an order as matter of right. It is only upon permission granted by the court below that the defendants are entitled to be heard in this court. The appeal comes to this court upon two specific questions, which have been certified to us by the learned court below, and they are: (1) Whether the board of estimate and apportionment has the power to grant to the defendants the permit described in the complaint and moving papers pursuant to section 242 of the revised charter of New York (chapter 466, p. 107, Laws 1901, as amended by chapter 629, p. 1533, Laws 1905), or other sections of the charter; and (2) are the plaintiffs entitled to maintain an action for an injunction restraining the defendants from taking any steps under the permit granted? Our jurisdiction in this appeal is limited to the decision of the questions certified and stated above. Briefly, our inquiry must be directed to the questions as to the right of the plaintiffs to maintain the action and the power of the board, under the section of the city charter, to grant the permission or privilege embodied in the resolution.

There is not, I think, any serious difficulty in the case concerning the right of the plaintiffs to maintain the action. They are residents and property owners upon the street, and their premises adjoin those of the defendants operating the department store and for whose private and exclusive benefit the grant was made. It is quite conceivable that the private residences so near to the obstruction may be rendered more inconvenient and uncomfortable in consequence of the existence of the railroad track and the movement of the cars thereon during the night, since the ordinance limits the right to operate the cars to the hours between 8 in the evening and 5 in the morning. It cannot therefore be held, as matter of law, that the plaintiffs will sustain no special damages in consequence of the occupation of the street by the railroad tracks, or that the inconvenience of which they complain is only such as is common to the public generally. It seems to me that the plaintiffs' private residence is so situated that the damage to it in consequence of the occupation of the street is special and peculiar within the rule which has sanctioned private actions in such cases. Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418,14 L. R. A. 556;Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341;Beekman v. Third Avenue R. R. Co., 153 N. Y. 144, 47 N. E. 277;Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307;Paige v. Schenectady Ry. Co., 178 N. Y. 102, 70 N. E. 213;Ackerman v. True, 175 N. Y. 353, 365,67 N. E. 629;Pierce v. Dart, 7 Cow. (N. Y.) 609; Crooke v. Anderson, 23 Hun, 266; Joyce on Nuisances, § 222; High on Injunctions (4th Ed.) 562; Wetmore v. Story, 22 Barb. (N. Y.) 414.

The fundamental and important question in the case is with respect to the validity of the ordinance expressing the consent of the city, through its municipal authorities, for the use of the street in the manner described and specified therein. There can be no doubt that the board of estimate and apportionment possessed all the powers concerning the use of the streets by the public and by private parties that were formerly possessed by the board of aldermen. Wilcox v. McClellan, 185 N. Y. 9, 17,77 N. E. 986. There can be no doubt that municipal authorities having the care and control of the streets in a city may authorize their temporary use by private parties for private purposes to a limited extent. The precise limits beyond which that power cannot be exercised have not been very specifically or accurately defined and perhaps cannot be. The governing body in a city may permit private parties to deposit building materials in the streets, to construct and use coal holes, cellarways, areas, vaults under the sidewalks, awnings above, and the like. But all these and all similar uses of the public streets for private use are either expressly authorized by statute or sanctioned by the courts as being exceptions to the general rule, born of necessity, and justified by public convenience...