Flynn v. Taylor — 60 N.Y. Sup. Ct. 167

Majority

p. 167

HUGH FLYNN, Respondent, v. J. MONROE TAYLOR, Appellant.

Headnote

Obstruction of a sidewalk by the constant receipt and, dischao'ge of merchandise — right of an adjoining owner to prevent such use of the street.

The owner and occupant of a piece of ground abutting upon a street in a city is entitled to have the street and sidewalk kept clear of all obstructions, except such as are reasonable and necessary under all the circumstances of the case. An owner of land abutting upon a city street has not a right to keep his horses and wagons upon the sidewalk in front of his premises during the greater portion of the day, and thus compel the adjoining owners, and all others having occasion to use the sidewalk, to turn out into the street in order to get around such obstruction.

Appeal by tbe defendant from a judgment rendered at tbe Kings County Special Term, and entered in the office of tbe clerk of that county on tbe 28th day of November, 1888, by wbicb tbe defendant, bis agents, servants and employees were enjoined from unnecessarily or unreasonably obstructing tbe sidewalk on tbe southerly side of Second street, in tbe city of Brooklyn, in front of tbe defendant’s factory.

It appeared upon the trial tbat tbe defendant occupied at tbat time, and had for several years prior thereto occupied, a plot of ground on tbe southerly side of Saekett street, in tbe city of Brooklyn, between Yan Brunt street and Ferry place, having about. 140 feet frontage upon tbe street, on wbicb there was a large factory; tbat defendant had erected in tbe street, in front of bis factory, a platform, about ninety feet long and two feet ten inches in height, projecting into tbe street across tbe sidewalk about four feet and eight inches, and bad maintained tbe same there for several years; that defendant used said platform for tbe purpose of loading and unloading merchandise therefrom and thereon, and bad been for several years past in tbe habit of keeping bis wagons for several borfrs each day, during such loading and unloading, standing upon so much of tbe sidewalk adjoining said premises as said platform did not cover. He also maintained a platform scales in tbe street, upon tbe sidewalk, in front of said building.

Tbe plaintiff owned and occupied, and bad since September, 1884, owned and occupied, a building and lot on tbe same side of tbe

p. 168

street, about sixty feet west of the defendant’s premises, where he carried on the retail liquor business.

The court found that the use of the sidewalk, as above stated, by the defendant, unnecessarily and unreasonably interrupted and interfered with the passage of the public along the same, and that the plaintiff had sustained damage by reason of such use thereof.

De Witt C. Brown, for the appellant.

Josiah T. Marean, for the respondent.

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 and 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, 101 N. Y., 360 .)

The judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.