
    Parsons Brothers, Incorporated, Respondent, v. The City of New York and Others, Appellants.
    
      Street opening in New York city — the city is not bound to at once keep the street open to public travel-.— a. fence is a building—remedy where an- obstruction ' . remains on the street for an unreasonable time.
    
    The provisions of the revised charter of the city of New York relating to the opening of streets therein (Laws of 1901, chap. 466, § 990, as amd. by Laws of 1903, chap. 418) do not impose upon the city an obligation to keep the street open to public travel from the. instant that the report in the proceeding to open such street is confirmed by the Supreme Court. That such was not the intent of the Legislature is indicated by section- 971 of the Greater New York charter, which provides, “ The hoard of estimate and apportionment may permit any building which shall be either partly or wholly included within the limits of any such street, or park laid out in the said city, and so to be opened as aforesaid, to remain unremoved for such time or times as they shall think proper,” and by subdivision 1 of section 151 of said charter, which provides, “It shall be lawful, for such bureau, under the direction of the comptroller, to collect rental for the temporary use and occupation of property acquired by the city for public purposes between the time of the acquisition thereof and the time when the same can be actually utilized for the purposes for which it was acquired.”
    A fence standing within the limits of a newly-opened street is a “bui.Ang ” within the meaning of section 971 of the revised Greater New York charter. Qucere, as to the relief available to a property owner, if a fence or other structure is allowed to remain upon a newly-opened street for an unreasonable length of time.
    Appeal by the defendants,-The City of New York and .others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of August, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining the defendants from maintaining a fence and other obstructions upon Nineteenth street in the borough of Brooklyn, and commanding them to remove the same, and awarding the plaintiff past damages.
    
      Patrick E. Callahan [James D. Bell and John J. Delany with him on the brief], for the appellant The City of New York.
    
      James A. C. Johnson, for the appellants The Hilton & Dodge Lumber Company and the Georgia-Florida Lumber Company.
    
      Conrad Saxe Keyes, for the respondent.
   Willard Bartlett, J.:

By an order of the Supreme Court dated June 12, 1903, proceedings for the opening of Nineteenth street, in the borough of Brooklyn, from high-water mark to the bulkhead line were duly confirmed. At that time there was upon the portion of the street thus newly opened a fence which had been erected in September, 1902. This fence extended across the street to the west of the plaintiff’s property. On the 29th of June and the 9th of October, 1903, in consequence of heavy rains, the surface of the ground was flooded, and the water flowing against this fence was turned back and thrown upon the plaintiff’s property, causing damage. The plaintiff has brought this action to prevent the further maintenance and to compel the removal of the fence as an unlawful encroachment upon the street, and also to recover damages on account of the effect of the obstruction in throwing back upon their premises water which' would otherwise have flowed into the harbor. The theory of the suit is that just as soon as the order was made confirming the street opening proceeding the fence became an unlawful encroachment and could not properly be maintained, either by the city or the other defendants, notwithstanding the fact that the street had never been and has never been actually opened, graded or paved. The plaintiff invokes the operation of that part of section 990 of the revised Greater New Y orle charter (Laws of 1901, chap. 466, as amd. by Laws of 1903, chap. 418) which provides: The title acquired by The City of New York to lands and premises required for a street, shall be in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be.”

The position of the plaintiff would seem to be technically correct, if it be true that the law imposes upon the city the obligation actually to keep the street open for public travel from the instant that -the report in the opening proceeding is confirmed by the Supreme Court. There are other portions of the charter, however, which clearly indicate to my mind that the Legislature did' not intend to impose so strict and peremptory a duty upon the city officials. The authority to open streets is conferred by section 970 of the revised Greater New York charter. The section immediately following (971) provides as follows : The board. of estimate and apportionment may permit any building which shall be either partly or wholly included within the limits of any such street, or park laid out in the. said city, and so to be opened as aforesaid, to remain unremoved for such time or times as they shall think proper.” This provision is plainly inconsistent with the idea that the municipal authorities musí immediately remove every obstruction from a proposed street before it is even graded or paved. It is manifestly intended to confer a reasonable discretion in regard to the time when buildings or other structures within the lines of the contemplated street shall actually be removed with reference to the progress of the work of grading and paving That such was the legislative intent is further shown by subdivision 1 of section 151 of the charter in the provision relating to the bureau in the finance department under the collector of city revenue and the superintendent of markets. That provision is as follows : “ It shall be lawful for such bureau, under the direction of the comptroller, to collect rental for the temporary use and occupation of property acquired by the city for public purposes between the time of the acquisition thereof and the time when the same can be actually utilized for the purposes for which it was acquired.”

It seems to me that the fence in question in this case was a building within the meaning of the language which has been quoted from section 971 of the charter. It was treated as such by the city officers, and the property upon which it stands was leased by the city to the defendant, the Hilton & Dodge Lumber Company, at a small monthly rental, evidently under the power conferred by the provision above quoted from section 151 of the charter. I do not see how it can be held that the city has done an unlawful act in doing precisely what section 971 of the charter provides that it may do; that is, for allowing a building included within the limits of a newly-opened street to remain unremoved for such time or times .as the board of estimate and apportionment may think proper. That seems to be all that the city has done in the present case.. The use to which the land has been put by the erection of the fence in question is not such as to give the plaintiff any right of action unless the fence at the time of the floods constituted an illegal obstruction upon the street. It does not seem to me that its presence there was unlawful in view of the provisions of law which I have cited. It may be that relief could be had, by a property owner situated as is the plaintiff, if the board of estimate and apportionment permitted a structure to remain unremoved upon a newly-opened street for an unreasonable length of time under all the circumstances; but whether that be so or not, I think the plaintiff has failed to make out a case for either injunctive relief or an award of damages in the present action.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  