Opinion
June 16, 1911.
Charles P. Northrop, for the appellant.
Charles Strauss, for the intervening defendants, respondents.
This is an appeal by the relator from an order denying its motion for a peremptory mandamus directing the respondents, Commissioners of Parks of the City of New York, to remove certain unlawful encroachments upon the highway, maintained by the respondents English-American Realty Company and John David. These latter have intervened in the proceeding and assumed the defense to the relator's application, the Commissioners of Parks taking no part in the controversy.
The respondents English-American Realty Company and John David are the owners and lessee respectively of a building standing on the southerly side of Thirty-second street, the westerly side of Broadway and the easterly side of Sixth avenue in the city of New York, known for many years as the Union Dime Savings Bank Building. The said respondents have erected and now maintain, under what purports to be a permit from the park department, show windows on all three sides of their building, with cornices encroaching upon Thirty-second street, Broadway and Sixth avenue from four feet nine inches to five feet six inches, the glass fronts of the windows encroaching from three feet seven and three-quarters inches to four feet eight inches. These particular show windows have been in place since 1909. They replaced other show windows which were erected about fifteen years ago. The space occupied by them was formerly an open area protected by a railing which was put there when the building was erected about thirty-five years ago. There are also two massive entrance porticos, one on Thirty-second street and one on Broadway, each of which encroaches upon the street from seven to seven and one-half feet. There is no dispute as to the character or extent of these encroachments, and indeed there could not well be, as the papers on appeal are profusely illustrated with photographs and surveys upon which the encroachments are graphically portrayed. The relator is a foreign corporation, alleged to be duly authorized to do business in this State, and occupies as lessee a building adjoining respondents' building, to the south thereof, and running through from Broadway to Sixth avenue. Its building also has show windows which encroach upon said streets. Conceding all the material facts contained in the petition for a mandamus, the respondents (by whom are meant the intervenors) plead by way of affirmative defense as follows: First, that relator is not a citizen or resident of the State, and, therefore, has no legal capacity or standing to maintain the proceeding. Second, that the relator is itself a transgressor in that it maintains obstructions similar to those of which it complains. Third, that the intervening respondents have acquired by prescription, as against the relator, the right to maintain the stone stoops and porticos and show windows of which it now complains. Fourth, that the relator is in no way damaged by reason of the encroachments complained of. It cannot be questioned for a moment that the projections of which the plaintiff complains are unlawful obstructions upon the public highway, and constitute a public nuisance which it is the duty of the public authorities to abate. ( Ackerman v. True, 175 N.Y. 353; City of New York v. Rice, 198 id. 124; People ex rel. Cross Co. v. Ahearn, 124 App. Div. 840; City of New York v. Knickerbocker Trust Co., 104 id. 223.) And it is equally well settled that no permit from the park department or any other municipal body could legally authorize the erection and maintenance of such encroachments. What was said in Wormser v. Brown ( 149 N.Y. 163), apparently recognizing the right of the park commissioner to permit encroachments in certain cases, no longer expresses the law. ( Ackerman v. True, supra.) Starting out then with the proposition that the encroachments are unlawful, and subject to removal by the park commissioners we have to consider the question whether or not the relator has a standing in court to set the park commissioners in motion to perform a public duty. There are two courses open to a property owner who complains of obstructions upon the highway maintained by his neighbor. He may institute a suit in equity to compel the obstructor to remove the obstruction as was done in Ackerman v. True ( supra), but even if he procure a judgment in such an action he may find difficulty in enforcing it (see People ex rel. Ackerman v. Stover, 138 App. Div. 237), or he may adopt the course which the relator has adopted, and to which the plaintiff in Ackerman v. True was finally driven, of calling upon the appropriate public authority, by mandamus, to perform the public duty of removing the obstruction. It is manifest that the two different modes of proceeding may be open to different defenses. An action in equity by an adjoining owner for the removal of an obstruction rests entirely upon the plaintiff's private right to enjoy the benefit of an unobstructed street, and it may well be that the court will withhold its hand and refuse to issue a mandatory injunction if it appears that the plaintiff is himself a trespasser and that he suffers no real damage from the obstruction of which he complains. Such was the case in Wormser v. Brown ( supra), in which an injunction was refused. So also in an equitable action, where it appears that the obstruction has existed for more than twenty years, the court may infer a consent on the part of the adjoining owner that, so far as his private interest is concerned, the obstruction may remain. It was such an implied consent that this court had in mind in 556 558 Fifth Avenue Co. v. Lotus Club ( 129 App. Div. 339). The question there was whether or not a slight projection over the street, easily removable without injury to the building, served to render the title unmarketable. It had existed for many years and under a statute referred to in the opinion the city could not compel its removal. For that reason an adjoining property owner could not have obtained a mandamus to compel the city authorities to do that which a statute forbade, and it was considered that in view of the character of the encroachment and the length of time it had visibly existed the chance that an adjoining property owner could maintain an action in equity was too slight to render the title unmarketable. If, therefore, this were an action in equity to enforce a private right of the relator the defense to the effect that the relator had for many years acquiesced without objection in the existence of the obstruction, that it maintained upon its own premises similar obstructions, and that it had shown no damage might require more serious attention. But this is not such a case. It is an application to compel public officers to perform a duty which they owe to the public, which they could, and perhaps should perform without the necessity for the prod of a mandamus. Their duty to act rests not upon any private injury done to relator ( People ex rel. Pumpyansky v. Keating, 168 N.Y. 390), but upon the respondents' infringement upon the property and rights of the public. Their duty to act is not lessened by the fact that some of the obstructions have been in existence for a long time, and that relator and its predecessors in interest have not complained, because no prescriptive right to occupy the streets can be gained as against the public, and no adjoining owner can legalize such an obstruction by acquiescence, even if he may debar himself from asserting his private right to have it removed. Nor does the fact that the relator also maintains an obstruction lessen the duty of the public authorities to take steps to abate the public nuisance maintained by the respondents. None of the defenses referred to, which might be relevant in an action in equity, constitute an answer to the present application. The suggestion that because the relator is a foreign corporation, and, therefore, technically a non-resident, it has no standing to ask that a public officer be required to perform a public duty is not impressive. The relator is, by our laws, permitted to come into this State and to carry on its business here. It is entitled to the equal protection of our laws, and is interested to see that these laws are enforced in so far as it may be affected by their enforcement or non-enforcement, and especially in the laws prohibiting encroachments upon the highway. The extent of its interest in the enforcement of the duty which it now seeks to enforce is immaterial, so that it appears, as it certainly does, that it has some interest and is not merely an officious meddler. ( People v. Halsey, 37 N.Y. 348. ) We are, therefore, of the opinion that the relator is entitled to a mandamus. A question remains, however, as to the form of the command to be issued to the commissioners. It is competent for the court to order them to proceed at once and remove the obstruction. ( People ex rel. Cross Co. v. Ahearn, supra.) It is also competent, however, for the city to compel the removal of such obstructions by those who maintain them. ( City of New York v. Knickerbocker Trust Co., supra; City of New York v. Rice, 198 N.Y. 124.) When the emergency is not pressing the latter course is more orderly, less drastic and puts the expense where it properly belongs. It may be, and perhaps generally is, slower. In the present case the obstructions have existed for a long time, and, while that fact does not make them less unlawful, it serves to suggest that no public necessity demands their instant removal. That they should be removed and with reasonable promptitude does not admit of question, but we consider that the ends of justice will be served and the rights of the public conserved if the mandamus to be issued to the park commissioners be to forthwith remove the obstructions to the highway described in the petition, or in their discretion to take such legal measures as are appropriate to compel their removal by the intervening respondents, and if such proceedings are instituted to prosecute them with all reasonable speed and diligence.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion that a peremptory mandamus issue in the form hereinbefore indicated be granted, with fifty dollars costs, to be paid by the intervening respondents.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with fifty dollars costs, to be paid by intervening defendants. Order to be settled on notice.