
    The Gunning System, Appellant, v. City of Buffalo and Others, Respondents.
    
      Injunction—sign advertising in violation of a city ordinance—the destruction of the sign forbidden until it is adjudged to be a nuisance—liability of one who destroys it without such adjudication.
    
    In an action by a corporation engaged in the business of sign advertising to prevent the fire commissioners of a city (acting under a city ordinance prohibiting the erection of billboards more than seven feet in height, without permission of the common council, and directing that any billboard erected contrary to its provisions should be abated as a common nuisance by any officer of the Are department after two days’ notice) from destroying billboards over seven feet in height which have been erected by it, without the consent of the common council, on private property and do not encroach upon the public streets, an injunction should be granted restraining the destruction of the billboards until the decision of the court, unless it appears that their continued existence or use is dangerous to the health or destructive of the comfort of the community, and requires the immediate action of the authorities for the protection of the citizens. .
    
      Semble, that a public official, who assumes to abate summarily what is declared to be a nuisance by an ordinance or a statute, does so at the peril of being called upon to respond in damages if he fails to establish that a nuisance existed.
    Appeal by the plaintiff, The Gunning System, from an order of "the Supreme Court, made at the Erie Special Term and entered in "the office of the clerk of the county of Erie on the 3d day of May, 1901, denying the plaintiff’s motion to continue an injunction pendente lite.
    
    
      
      Tracy G. Becker, for the appellant.
    
      William H. Guddebdck, for the respondents. •
   Rumsey, J.:

The plaintiff is a foreign corporation which has obtained the right to do.business in this State, and is engaged in the business of sign advertising. The defendants are the city of Buffalo and the fire commissioners of that city. It appears from the complaint, and the facts are not denied, that on the 2d of April, 1901, the plaintiff made a contract with one Bailey, by which it obtained the privilege of building upon his land in the city of Buffalo an advertising sign, and that it did erect a sign twelve feet in height and fifty feet in length, placing it wholly and entirely upon Bailey’s land so that no part of it encroached upon the street or sidewalk, or in any way interfered with the rights of the public.

By section 48 of chapter 4 of the ordinances of the city of Buffalo it has been enacted that “No person shall hereafter erect any fence or bill board more than seven feet in height within the Oity of Buffalo, without permission of the Common Council; and any fence or bill board erected contrary to the provisions thereof shall be abated as a common nuisance by any officer of the fire department after two days’ notice to remove same.” The defendant fire commissioners gave the two days’ notice to remove this bill board and the plaintiff declined to do it. The defendants now propose to tear it down. It appears that the plaintiff has erected numerous other advertising boards upon other pieces of property in the city of Buffalo, each one of them more than seven feet in height, but none of them encroaching upon a street; and it further appears by an affidavit filed subsequently to the argument, but which seems to have been considered by the learned justice at the Special Term, that one of these boards has been torn down under the authority of this ordinance.

When the action was begun the plaintiff procured an injunction restraining the defendants from tearing down any of these structures, with an order to show cause why that injunction should not be continued. Upon, the return day of that order to show cause the learned justice at the Special Term declined to continue the injunction, and from his order thus made this appeal is taken.

We have not found it necessary to examine whether the common council of the city of Buffalo had the power to pass the ordinance in question, nor whether structures like these are included within the prohibition of the ordinance. Those matters we leave to be.determined in the trial court when the case comes on to be considered by it, without expressing an opinion upon either one of them.

We shall only consider the question whether upon the papers presented to us there is made a case which will justify the fire commissioners in destroying these structures as common nuisances according to the provisions of the ordinance. It hardly needs the citation of authorities to establish the proposition that a thing does not become a nuisance simply because it is declared to be such by the Legislature, or by the common council of any municipality. Whenever it is alleged that any structure is a nuisance and the right is claimed to abate it summarily, the owner is entitled to his day in court upon that question; and if a public official or any one else proceeds to take summary measures to abate a nuisance he does so at the peril of being liable in damages if he fails to establish his contention when the owner calls him to account for the destruction of his property. (Delaware, Lackawanna & Western R. R. Co. v. City of Buffalo, 4 App. Div. 562, 568.) A person complaining of a nuisance may proceed by indictment or in some cases by an action to require the nuisance to be abated, but if he does not see fit to invoke the interposition of the courts, and elects to proceed summarily by virtue of any statute or an ordinance, the owner is at liberty to apply to the courts to have his rights established. (People ex rel. Copcutt v. Bd. of Health, 140 N. Y. 1.) Neither a statute nor an ordinance is a conclusive adjudication that the structure prohibited is a nuisance so as to authorize its destruction, and take away from the owner the right to have the judgment of the court upon that question.

Until the action shall be finally decided it is proper that the rights of the owner should be protected, and that his structure should be permitted to stand unless it shall be made to appear that its continued existence or use is such that it is dangerous to the health, or destructive of the comfort of the community, and requires the immediate action of the authorities for the protection of the citizens. Nothing of - that kind appears in this case. Upon the papers which have been presen ted-to us there is nothing to show that the structures, or any of them, are either so built, or so situated, or so used, that they are likely to be dangerous to the community or inconvenient to the citizens. The worst that is said of the structures themselves is that they are not agreeable to look at, .but clearly that affords no- reason for their summary abatement as a nuisance..

It is said by the learned corporation counsel in his affidavit that these high structures erected upon vacant lots, “ will be a place of resort for lewd and vicious characters, a place where nuisances are committed, and also a place of deposit for rubbish and all kinds of filth and refuse, whereby the peace and safety as well as the health of the public will be endangered.” Conceding for the purposes of the argument that the prophecy of the affiant will come true, there is no suggestion upon the record that such things have happened, and there is no reason to suppose that, if such things do happen, the nuisance, if it is one, cannot be abated in some other way than by the destruction of the signboards. Whén any building or structure becomes a nuisance, not because of its inherent qualities, but because of the use to which it is put or the manner of that use, it is- not to be destroyed to abate the nuisance, unless such destruction is absolutely necessary. If the nuisance can be abated by regulating the use, that is all that is to be permitted to bé done. (Wood Nuis. § 740; Health Department v. Dassori, 21 App. Div. 348.) So, even if the consequences apprehended by the defendants from the existence of these structures should ensue, it would not then be necessary to destroy them for the purpose of preventing that use.

For. these reasons it seems to us proper that during the pendency of this action, and until these grave questions shall, be decided, the plaintiff should be entitled to maintain these structures, and the defendants should be restrained from attempting to destroy them under the authority of this alleged ordinance. The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the injunction continued, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and injunction continued, with ten dollars costs.  