Manley v. Leggett — 43 N.Y. St. Rep. 237

Majority

p. 237

Mary A. Manley, Resp’t, v. Francis H. Leggett et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

1. Nuisance—Obstruction of roadway—Injunction.

A temporary and reasonable use of a roadway, which does not unnecessarily obstruct access to adjoining premises, does not amount to a nuisance which authorizes an injunction to restrain it.

2. Injunction—Undertaking.

An injunction need not contain a direction as to the undertaking to be given.

Appeal from an order of the special term granting an injunction to restrain the defendants from occupying the sidewalks in front of their premises with trucks, wagons, vehicles or other like obstructions, and from unreasonably or unnecessarily obstructing the sidewalks by any plank-way, skid or bridge, and from occupying the roadway in front of plaintiff’s premises, or permitting the same to be occupied by trucks, wagons or other vehicles.

Noah Davis, for app'lts; Nelson S. Spencer, for resp’t.

No point was made upon the argument of this appeal as to the propriety of the injunction so far as it restrains-

Concurrence

p. 238

the unlawful use of the sidewalk in front of the defendants’ premises. The appellants’ argument was confined to criticism of that part of the injunction which restrains the defendants from •occupying the roadway in front of the plaintiff’s premises.. We think the appellants’ contention on this head is well founded, and that the injunction with regard to the "roadway .■should be modified. The plaintiff has in this particular failed to make out a case for an injunction pendente lite within the principles enunciated in Callanan v. Gilman, 107 N. Y., 360 ; 12 St. Rep., 31 , and the cases there cited.

After reading the affidavits upon both sides, it is impossible to say that the plaintiff has clearly established such a continuous .and extensive use of the roadway in front of the plaintiff’s premises as to constitute a nuisance. Temporary use of the roadway, there as elsewhere, is inevitable, and the question is, was the actual use, under the circumstances, excessive and unreasonable? That ■question is so doubtful, upon the papers, as matter of fact, that the plaintiff should have been remitted for its solution to a trial ■at special term.

A point is made ttiat the injunction was irregular in not requiring an undertaking as prescribed by § 620 of the Code. We have no means of knowing whether this point is well taken as matter of fact. There is nothing in the Code which requires the direction as to the undertaking to be embodied in the injunction order. For aught that appears upon this record, a proper ■undertaking was duly given. But even if failure upon that head affirmatively appeared upon the record, the irregularity could be cured nunc pro tune, and even the general term could provide for the giving of such security upon terms. N. Y. Attrition Co. v. Van Tuyl, 2 Hun, 373 ; Pratt v. Underwood, 4 Civ. Pro., 167.

The order appealed from should be modified by striking out ■so much of the injunction as relates to the roadway in front of the plaintiff’s premises, and, as modified, affirmed, without costs of this appeal.

I concur. But I do not think that the plaintiff may not be entitled to relief because of the improper use ■of the roadway by the defendant. The plaintiff is entitled to access to her premises, and the defendants cannot be permitted to deprive her of that access under the plea that he is only using the street to receive goods sent or coming to his store. If the goods come faster than his staff of employees can receive, then he must employ a larger staff so that the plaintiff is not interfered with unreasonably in her access to her premises.

Andrews, J., concurs.