People ex rel. Bentley v. Mayor of New York — 18 Abb. N. Cas. 123

Majority

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PEOPLE ex rel. BENTLEY v. MAYOR, ETC., OF NEW YORK.

N. Y. Supreme Court, First District, Chambers;

September, 1885.

Headnote

1. Mandamus to remove show ease from sidewalk.] Show-cases, placed upon the sidewalk in front of business premises, extending beyond the house line, and to that extent covering the sidewalk appropriated to public use, are a nuisance, and their removal by the authorities charged with the duty of removing street obstructions may be compelled by mandamus issued at the instance of a neighboring merchant who is specially injured by having his show-windows cut off from the view of passers-by.

2. The same; municipal permit.] Such obstructions cannot be allowed to continue under a permit of the city authorities to place the showcases upon the sidewalk.

Motion for mandamus.

Petition of Charles E. Bentley for an order directing the

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respondents, the Commissioner of Public Works and the Superintendent of the Burean of Incumbrances, of the city of New York, to take immediate steps to revoke certain permits issued by the Mayor’s Bureau of Permits to place show-cases on the sidewalk in front of certain premises on Fourteenth street, and to remove the show-cases placed on the sidewalk under such permits.

The permits in question provided that the privilege thereby granted “ must be exercised inside the stoop line in front of the premises of the grantee, and must not be of such size and character as to be or become an obstruction to the rights of the neighbors. . . . Show-cases must not be more than 5 feet in height, 3 feet in length, and 2 feet in width. Goods when exhibited must not be more than 3 feet from the building line, and not to a greater height than 5 feet.” This permit was given for one year, but “ revocable at the discretion of the Registrar of Permits.”

The court found that the-relator was a merchant engaged in business, and occupying a store at No. 12 West Fourteenth street, and that in front of the premises adjoining the relator’s, on either side, certain show-eases were placed by the proprietors of the adjoining stores, every clear day except Sundays, from 8 o’clock in the morning until 6 o’clock in the afternoon ; that the show-cases were from 7 to 10 feet in height, and from 4 to 6 feet square, detached from the building in front of which they stood, and at a distance of about 8 feet therefrom, and more than 6 feet beyond the house line, and to that extent covering the sidewalk appropriated to the public use; that the show-cases obstructed the view of people coming along on that side of the street of the windows of the relator’s store ; that they were an obstruction of the street and a nuisance, and that the respondents had refused to remove such obstructions upon the relator’s request.

John Delahunty, for the relator.

E. Henry Lacombe, Counsel to the Corporation, for the respondents.

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Jeroloman & Arrowsmith, for the owners of the showcases.

This case is within the doctrine laid down in Le Boutillier v. The Mayor, &c., Geraty v. The Mayor, &e., and Nearn v. The Mayor, &c,^[1]

It may now he deemed the settled rnle in this court that obstructions of the streets will not be permitted, and that business men cannot, even with such a permit as that now submitted, encroach upon the highway with their show-cases. The case of People ex rel. O’Reilly v. Mayor, &c., of N. Y. ( 59 How. Pr., 277 ), is ample authority for the writ of mandamus where, as here, neighboring merchants are (as in the nature of things they must be) specially injured by such obstructions.

The mandamus must issue as prayed for except as to the revocation of the permit, but, as these are public officers, without costs.^[2]

* Unreported decisions at Chambers of the Supreme Court.

† † The writ directed that the respondents “ henceforward remove and keep removed from said portion of said sidewalk all show-cases and piles of goods obstructing said sidewalk, and particularly the said show-cases, and" piles of goods in front of or near the entrances to Nos. 10 and 14 West Fourteenth street, in said city of New York, and to exercise the lawful power and authority vested in you, and each of you, as such Commissioner of Public Works and Superintendent of the Bureau of Incumbrances, to keep said portion of said sidewalk free and clear from the obstructions and incumbrances aforesaid, and to prevent the occupancy or obstruction of said portion of said street or sidewalk by the placing thereon of show-cases or other articles.”