Opinion
May, 1905.
Julien T. Davies, Jr., for the appellant.
Theodore Connoly, for the respondent.
The city of New York brought this action seeking a mandatory injunction to compel the defendant to remove certain structures, namely, steps and coping and an area which it alleges were unlawfully constructed upon the property of the plaintiff, namely, being a public street in the city of New York at Fifth avenue and Thirty-fourth street. The material allegations of the complaint are that the plaintiff is a municipal corporation; that the defendant, the Knickerbocker Trust Company, is a domestic corporation organized under the laws of the State of New York; that the defendant was the owner in fee simple of the premises at the corner of Fifth avenue and Thirty-fourth street in said city, and that such streets are and at all times mentioned in the complaint, and for many years before the commencement of this action were public streets in the city of New York, held in trust by said city as open streets and thorough-fares for the benefit of the public; that sometime during the winter of 1902-1903, or thereabouts, the defendant constructed at the northwest corner of Thirty-fourth street and Fifth avenue a new building having a frontage both on Fifth avenue and on Thirty-fourth street; that the defendant has made, or is making, on the Thirty-fourth street side an open areaway with a coping in and upon the sidewalk of Thirty-fourth street, which area is fifty-four and eight-tenths feet long and twelve feet wide, with a coping two feet wide; that the areaway has steps five and six-tenths feet wide at its easterly end and twelve feet wide on the westerly end, leading from the level of the sidewalk proper down to the basement of the building; that the defendant further constructed, or is constructing, around the northwest corner of Fifth avenue and Thirty-fourth street stone steps around the base of the building, which steps lead from the sidewalk level up to the first floor of the building of the defendant on Fifth avenue; that at Fifth avenue these steps project fifteen feet beyond the building or street line into the sidewalk for a distance of sixty-one and nine-tenths feet, and on the Thirty-fourth street side the steps project fourteen and two-tenths feet beyond the building or street line into the sidewalk, and are twenty-one and nine-tenths feet wide; that Fifth avenue at its intersection with Thirty-fourth street is a public street, ninety-nine and nine-tenths feet wide, and at a point in front of the premises of the defendant the sidewalk from the westerly building or street line to the westerly curb line is thirty feet wide, the roadway is forty feet wide, and the sidewalk on the easterly side is twenty-nine and nine-tenths feet wide, making the total width of the street at this point ninety-nine and nine-tenths feet; that the width of the sidewalk between the westerly curb and the stone steps is fifteen feet; that Thirty-fourth street at its intersection with Fifth avenue is a public street one hundred feet in width, and that at a point in front of the said premises the sidewalk from the northerly or building line to the north curb is thirty feet, the roadway is forty feet wide, and the sidewalk on the southerly side is thirty feet wide, making the total width of the street at this point one hundred feet; that the width of the sidewalk between the northerly curb and coping of the areaway is sixteen feet. It is then alleged that the defendant constructed, or caused to be constructed, and is now constructing, the coping, area and steps around the Fifth avenue and Thirty-fourth street side of the premises and outside of the building line, and upon the property of the plaintiff, without any permit so to do from the plaintiff, and in violation of sections 179, 182 and 329 of the revised ordinances of the city of New York, adopted March 9, 1897, and approved March 15, 1897, and the defendant has unlawfully constructed and maintained, or caused to be constructed and maintained, and is now constructing and maintaining, the aforesaid coping, area and steps, and still unlawfully continues to do so without the permission of the plaintiff and in violation of the plaintiff's rights in said street; that the coping, area and steps thus constructed and maintained and now building by the defendant were and are entirely unauthorized, and were and are in violation of the law of the State and of the ordinances of the plaintiff, and are partly upon lands belonging to the plaintiff, and the coping area and steps so constructed, maintained and now building were and are a nuisance, and the building thereof by the defendant constitutes a continuing nuisance and trespass by the defendant. The plaintiff then alleged that the filling in of the said area and the removal of the said steps and coping and the placing of the sidewalk in the condition it would be in were it not for the said coping, area and steps were not those encroachments there, would be attended with great expense and would be followed by litigation against the plaintiff; that the defendant has been notified and requested to close the said area and remove the said coping and steps and has refused and neglected to do so, and claims the right to maintain the same; that the plaintiff is unwilling to assume the burden of expense of removing the said incumbrances and nuisance, filling in said area, and prefers that the same shall be done by the defendant at its own expense, and also that the plaintiff has no adequate remedy at law. The prayer for relief is that it be adjudged that the construction and maintenance of the coping and area on Thirty-fourth street, so far as it extends beyond five feet from the building line on Thirty-fourth street, and so much of the steps as extend beyond seven feet from the building line on Fifth avenue and also on Thirty-fourth street, were and are illegal and constitute a public nuisance, and that plaintiff is entitled to remove the coping and steps and fill in said areaway, and that the appropriation and occupation by the defendant of all the aforesaid space was and is illegal; that the defendant and its officers, agents, attorneys and servants be enjoined and restrained from further maintaining the said coping, area and steps, and that it be ordered and directed to remove the same forthwith at its own expense, and restore the sidewalk to a condition both on Thirty-fourth street and Fifth avenue in which it would be, if said coping, area and steps had not been constructed there, and in the event of the defendant failing or neglecting to remove the same and complying with the decree of the court, the plaintiff prays that it may be ordered to charge the expense of removal and restoration to the defendant. Annexed to the complaint and as an exhibit thereto, sections 179, 182 and 329 of the Revised Ordinances of the city of New York are set forth in full.
The defendant demurred to the complaint upon the ground that it appears upon the face thereof that the complaint does not state facts sufficient to constitute a cause of action, and that two causes of action have been improperly united in the same count, one being an alleged cause of action in equity to abate a nuisance, and the other an alleged cause of action in ejectment to recover real property, and that said alleged causes of action are inconsistent with each other. The demurrer was overruled and from the interlocutory judgment the defendant appeals to this court.
There are not two causes of action improperly united. The complaint is for a single cause of action and it sets forth all the facts which would entitle the plaintiff to relief on that single cause of action. As remarked by the justice at Special Term, the rule is now well established in this State that where the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which violates that right, the complaint states but a single cause of action, no matter how many forms and kinds of relief the plaintiff may be entitled to. ( Hahl v. Sugo, 169 N.Y. 109.)
The complaint contains a statement of facts sufficient to constitute a cause of action. There are allegations of the existence of a nuisance in the public streets and, as no question of the mode of trial now arises, it may be that the plaintiff would be entitled to maintain this as an action of nuisance under sections 1660-1662 of the Code of Civil Procedure; but the case has been treated on both sides as a suit in equity brought specifically for the purpose of compelling the defendant to remove obstructions and encroachments on the public streets of the city. That the encroachment or obstruction being in the public streets and occupying a considerable part of the sidewalk, without authority, is a nuisance, is well settled. ( Davis v. Mayor, etc., of New York, 14 N.Y. 506; President, etc., of Waterford Whitehall Turnpike v. People, 9 Barb. 161; Wakeman v. Wilbur, 147 N.Y. 657; Babbage v. Powers, 130 id. 281; Ackerman v. True, 175 id. 353.)
It is quite unnecessary in criticising this complaint to consider whether the constructions complained of constitute encroachments or obstructions. It is sufficiently indicated in the complaint that they constitute both, for they are permanent constructions and occupy a portion of the sidewalk over which the public had the right to pass. The public is thus excluded from the use of so much of the sidewalk as has been without authority appropriated by the defendant for the purpose of its building. "Any contracting or narrowing of a highway is a nuisance. (1 Russ. on Crimes, 350.) Any obstruction left in the road, or omission to repair it, whereby it is less convenient for public use, falls within the same category. The public had a right to have the road continued substantially in the same manner, as to width and safety, which the charter required at its first construction." ( President, etc., of Waterford Whitehall Turnpike v. People, supra, 174, 175.)
The authorities cited by the justice at Special Term fully sustain his view that where the damage or injury is common to the public, redress is properly sought by a proceeding in behalf of the public, and the form of action here adopted has been frequently upheld and is an appropriate and proper remedy in a case like the present. ( People v. Metropolitan Telephone Co., 31 Hun, 596; City of Utica v. Utica Tel. Co., 24 App. Div. 361; City of Rochester v. Bell Tel. Co., 52 id. 6; City of New York v. Thorley, N.Y.L.J., Nov. 19, 1901; affd., 73 App. Div. 626; Wheelock v. Noonan, 108 N.Y. 179.) It was held in Trustees of Watertown v. Cowen (4 Paige, 510) that a municipal corporation has power to file a bill in equity to protect the rights of the inhabitants of the village to the use of a public square and also for nuisance. In the case of City of New York v. Thorley ( supra), which was before this court in 1902, we affirmed a judgment requiring the defendants to remove a portico built in front of their building on Forty-second street west of Broadway. That was a suit in equity to compel the defendants to take down and remove at their own expense the structure which extended into the public highway beyond a permitted line and which was erected without lawful authority and which was an incumbrance upon the highway. Courts of equity have always exercised a concurrent jurisdiction with courts of law in cases of nuisance or of continuing trespass. In Attorney-General v. Cohoes Company (6 Paige, 133) it was held that chancery has jurisdiction to restrain an unauthorized act which may amount to a nuisance or may injuriously affect or endanger the public interest. In Mayor and Common Council of the City of Rochester v. Curtiss (Clarke Ch. 339), although an injunction was denied, the vice-chancellor said: "I do not agree with the defendant's counsel that an injunction will not be allowed to prevent a nuisance. There are many cases in which this court will interpose its strong arm, by summary process, to prevent the erection of a nuisance which if erected would involve imminent danger, and lead to great or irreparable mischief. * * * And so in cases of intrusion by building upon property dedicated to the public use, as a square, a street, or highway, this court will in a clear case interfere, by an injunction to prevent it."
It is claimed by this appellant in a very ingenious and elaborate argument that the jurisdiction of a court of equity cannot attach in this case in consequence of the provisions of various ordinances of the city of New York, which give authority to the board of aldermen or certain municipal officers to remove nuisances, and which prescribe a certain procedure for their removal, and it is contended that the remedies so provided are exclusive. There are, however, no ordinances before us or to which we can have recourse, except the three, the text of which is annexed as a schedule to the complaint, and section 197 referred to in section 179. The court cannot take judicial notice of the ordinances of a municipal corporation. ( Porter v. Waring, 69 N.Y. 254.) It is argued that by section 41 of the revised Greater New York charter ordinances not inconsistent with the charter and in full force on January 1, 1902, are "continued in full force and effect." But they are not continued as part of the statutory law incorporated in the provisions of the charter. They are simply continued in force as ordinances. They are given no higher sanction nor greater dignity than they had previously. We are, therefore, confined to the consideration of the four ordinances above referred to.
It is to be observed, however, that the complaint of the city is not limited to a cause of action based upon a violation of the city ordinances. They are mentioned in the complaint, but the chief grievance of the city is the encroachment upon the public highway and its obstruction by reason of the permanent character of the appurtenances to the defendant's building mentioned in the complaint. Those constructions are not only forbidden and punishable by the ordinances, but, irrespective of such ordinances, they are of such a character that their removal could be compelled by the courts in the application of ordinary rules of law. So far as the consideration of the ordinances is material, it is to be remarked that sections 179 and 197 relate apparently to temporary incumbrances or obstructions of a street, roadway or sidewalk which has been opened, graded and regulated according to law. Section 182 prohibits the construction or continuance of any platform, stoop or step in any street in the city of New York which shall extend more than one-tenth part of width of the street, nor more than seven feet, nor with any other than open backs or sides or railings, nor of greater width than is necessary for the purpose of a convenient passageway into the house or building, nor any stoop or step which shall exceed five feet in height, under the penalty of $100. Section 329 provides that no area in front of any building in the city of New York shall extend more than one-fifteenth part of the width of any street, nor in any case more than five feet, measuring from the inner wall of such area to the building; nor shall the railing of such area be placed more than six inches from the inside of the coping on the wall of such area, under the penalty of $100, to be recovered from the owner and builder thereof, severally and respectively.
These ordinances are regulations relating to the sidewalks and streets of the city, and they contain prohibitions of encroachments upon such sidewalks, with a penalty which may be imposed for a violation of such regulations. They do not affect in any way the general right of the municipality to prevent unlawful encroachments or obstructions, or to compel their removal, if they have been placed in the highway. They cannot be construed as giving a license to one who creates a nuisance in a public street to continue that nuisance upon the payment of these small penalties. The city cannot give permission to an owner of property to erect any part of his building on the public highway. As said in Ackerman v. True ( 175 N.Y. 364): "Although it is true that the title of the streets in the city of New York is in the municipality, that title is held by it in trust for public use, and not even the municipal assembly has authority to permit permanent encroachments thereon. While that body may, by ordinance, regulate the use of streets, highways, roads, public places and sidewalks, and prevent encroachments upon and obstructions to the same, the charter expressly provides that `they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repairing of a building on a lot opposite the same.' (Ch. 378, L. 1897, § 49, subdiv. 3.)" That section is now section 50 of the revised Greater New York charter of 1901, which became a law April 22, 1901, and took effect on January 1, 1902.
In the ordinances thus considered, we find nothing to sustain the defendant's contention of a limited power in the city to remove these obstructions by specified procedure or by an exclusive remedy; nor is the inference necessary that because a penalty is provided for a violation of the ordinances before us, the city is debarred from its right to invoke the aid of the courts in the suppression of a nuisance.
We are of the opinion that the complaint is sufficient and that the interlocutory judgment appealed from should be affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.
INGRAHAM and LAUGHLIN, JJ., concurred; VAN BRUNT, P.J., and McLAUGHLIN, J., concurred in result.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.