Flynn v. Taylor — 26 N.Y. St. Rep. 649

Majority

p. 649

Hugh Flynn, Resp’t, v. J. Monroe Taylor, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Nuisance — Obstruction ot street.

Occupants of premises on a street have a right to have the sidewalks clear of all obstructions except such as are reasonable and necessary under all circumstances.

3. Same.

Defendant allowed his horses and wagons to stand on the sidewalk during the greater part of the day, thus compelling all travelers to turn out in the street in order to pass. Held, that such obstruction was not reasonable and that plaintiff, who occupied premises on the same street, was entitled to maintain an action to abate it.

Appeal from judgment restraining defendant and his agents, etc., from obstructing a sidewalk.

Plaintiff occupied premises in the vicinity of the defendant’s factory. The other facts appear in the opinion.

DeWitt C. Brown, for app’lt; Josiah T. Marean, for resp’t

The court below found, as matters of fact, that the defendant, for several years, unnecessarily and unreasonably interrupted and interfered with public travel upon the street and sidewalk in question, and that the plaintiff was specially damaged thereby, and these conclusions are sustained by the proofs. The plaintiff has a clear right to have the street ana sidewalk clear of all obstructions, except such as are reasonable and necessary under all the circumstances. It is not reasonable that during a greater portion of the day the defendant should keep his horses and wagons upon the sidewalk, and thus make the plaintiff, and all others having occasion to use the walk, turn out upon, the street in order to get around such obstruction. The plaintiff is injured by having so to turn out in going to and from his place of business. Again, his place of business is so near to this place that it may well be inferred that custom may be diverted from his place by the inconvenience of his customers in having to pass such obstructions. In a case of such a glaring public nuisance it is not essential to prove great damage to warrant its abatement, but slight special injury is sufficient to give a plaintiff standing in court for redress. Callanan v. Gilman, 107 N. Y., 360 ; 12 N. Y. State Rep., 21.

The judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.