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Matter of Warehousemen's Association v. Cosgrove

Court of Appeals of the State of New York
Dec 8, 1925
150 N.E. 563 (N.Y. 1925)

Summary

In Matter of Warehousemen's Assn. v. Cosgrove (241 N.Y. 580) our Court of Appeals declared that (p. 581) "The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship."

Summary of this case from Matter of Wolf v. Valentine

Opinion

Argued November 24, 1925

Decided December 8, 1925

Appeal from the Supreme Court, Appellate Division, First Department.

Charles J. Nehrbas and Charles D. Olendorf for appellant.

George P. Nicholson, Corporation Counsel ( John F. O'Brien and Josiah A. Stover of counsel), for respondent.


It is admitted that Pan-American Wharfage Co., Inc., and Pan-American Terminal and Dock Company are maintaining warehouses on the double deck piers on Staten Island which they lease from the city. The decision below is that as matter of law they have the right to maintain such warehouses. The lessee agrees to abide by the laws of the State of New York respecting the use of the piers. The Greater New York charter, section 846, prohibits the maintenance on any pier of a storehouse. The use of the piers for warehousing is, therefore, an illegal use. It is the duty of the commissioner of docks to enforce the terms of the permit. Physically, the use does not encumber the pier or interfere with its free use. The duty of the commissioner of docks is to notify the lessees to cease the illegal use. The respondent's brief contends that it is not his clear legal duty forthwith to stop the illegal use. But the decision below is to the effect that the use is legal. Doubtless the court has some discretion in the matter. The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship.

Order should be reversed and the proceeding remitted for consideration on the merits, with costs to appellant.

HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.

Order reversed, etc.


Summaries of

Matter of Warehousemen's Association v. Cosgrove

Court of Appeals of the State of New York
Dec 8, 1925
150 N.E. 563 (N.Y. 1925)

In Matter of Warehousemen's Assn. v. Cosgrove (241 N.Y. 580) our Court of Appeals declared that (p. 581) "The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship."

Summary of this case from Matter of Wolf v. Valentine
Case details for

Matter of Warehousemen's Association v. Cosgrove

Case Details

Full title:In the Matter of the Application of WAREHOUSEMEN'S ASSOCIATION OF THE PORT…

Court:Court of Appeals of the State of New York

Date published: Dec 8, 1925

Citations

150 N.E. 563 (N.Y. 1925)
150 N.E. 563

Citing Cases

Matter of Wolf v. Valentine

They point out, however, that the granting or withholding of an order of mandamus is controlled by equitable…

Matter of Warehousemen's Association v. Cosgrove

Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N.Y.…