
    Benjamin L. M. Bates, Respondent, v. Frederick Holbrook et al., Appellants.
    1. New York City — Subway Improvement —• Obstruction of Thoroughfare. The erection in the paved thoroughfare, or plaza, in front of the Everett House, and between it and Union Square in the city of New York, and outside of the line of the subway, and partly in said square, of buildings and structures, inclosing about two-thirds of the thoroughfare for the storage of tools and machinery used in the construction of a section of the subway requiring three or more years to complete, and for the generation of compressed air power for use along the whole line of work on the section, thereby causing serious loss and damage to the proprietor of the hotel, is not authorized by the terms of the Rapid Transit Acts (L.' 1893, ch. 556, § 5; L. 1896, ch. 739, § 39)..
    3. Appropriation not a Temporary Privilege — Permanent Structures. Such buildings and structures, although not permanent in a general sense, are so in a special sense with reference to the completion of the work, and their maintenance is not the enjoyment of temporary privileges within the meaning of section 5 of chapter 556 of the Laws of 1893, prohibiting the use or occupancy of streets except such as may have been designated for the route or routes of a railway or except such temporary privileges as the proper authorities may grant to facilitate construction.
    
      3. Nuisance—Damages. The erection and maintenance by sub-contractors of such structures, which cause serious loss and damage to a hotel proprietor and which structures could as well be located in sparsely settled districts near the river front or subdivided into a number of small plants along the line of the work, is not necessary for the reasonable prosecution of the work and constitutes a nuisance entitling such proprietor to adequate compensation in damages or to an injunction restraining its continuance.
    
      Bates v. Holbrook, 67 App. Div. 35, affirmed.
    (Argued May 6, 1902;
    decided June 10, 1902.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23,1901, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      John M. Bowers and James A. Dunn for appellants.
    The representatives of the state, empowered by statute to make public improvements in a public street which do not involve direct encroachment upon private property, are not liable for consequential damages, unless such damages are caused by negligence, misconduct or want of skill; (Uppington v. City of New York, 165 N. Y. 222; Holland House v. Baird, 169 N. Y. 136 ; Lester v. Mayor, etc., 79 Hun, 479 ; 150 N. Y. 578; N. T. Co. v. Chicago, 99 U. S. 635; Atwater v. Canandaigua, 124 N. Y. 602 ; Benner v. A. D. Co., 134 N. Y. 156 ; Radcliff v. Mayor, etc., 4 N. Y. 195 ; Bellinger v. N Y. C. R. R. Co., 23 N. Y. 42 ; Brooklyn Park Comm. v. Armstrong, 45 N. Y. 235 ; Kellinger v. F. S. S. R. Co., 50 N. Y. 206 ; Uline v. N. Y. C. R. R. Co., 101 N. Y. 125 ; Seifert v. City of Brooklyn, 101 N. Y. 136.) In cases of authorized nuisances in a highway, the plaintiff must allege and prove negligence in order to recover. (Babbage v. Powers, 130 N. Y. 281; Nolan v. King, 97 N. Y. 565; Congreve v. Smith, 18 N. Y. 79 ; Creed v. Hartman, 29 N. Y. 591; Sexton v. Zett, 44 N. Y. 430; Clifford v. Dam, 81 N. Y. 56; Urquhart v. Ogdensburg, 91 N. Y. 67; Port Jervis v. F. N. Bank, 96 N. Y. 556; Wolf v. Kilpatrick, 101 N. Y. 146; Seifert v. Brooklyn, 101 N. Y. 143.) The injuries complained of do not constitute a taking or a trespass, and are in all respects what are commonly called consequential injuries. (Story v. El. R. R. Co., 90 N. Y. 122; Lahr v. E. R. R. Co., 104 N. Y. 288; Kane v. E. R. R. Co., 125 N. Y. 176; Bischoff v. E. R. R. Co., 138 N. Y. 262; Sperb v. E R. R. Co., 137 N. Y. 158 ; Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505; A. B. N. Co. v. N. Y. E. R. Co., 129 N. Y. 271; Bohm v. M. E. R. R. Co., 129 N. Y. 587; I. Ry. Co. v. Eberly, 110 Ind. 542; Eels v. A. T. & T. Co., 143 N. Y. 133.) The Appellate Division erred in its construction of the power of the rapid transit railroad commissioners. [McCullough v. Maryland, 4 Wheat. 414; Morris v. Edging-ton, 3 Taunt. 31; Lawton v. Rivers, 2 McC. 445; Pettingill v. Porter, 8 Allen, 1; Marvin v. B. I. Co., 55 N. Y. 553.) The legislature contemplated in using the word “ temporary ” a period of time commensurate with the^reasonáble prosecution of the work. (Vanderpool v. Husson, 28 Barb. 196; Plant v. L. I. R. R. Co., 10 Barb. 26 ; Welde v. N. Y. & H. R. R. Co., 28 App. Div. 385 ; Matter of N. Y. C. R. Co., 104 N. Y. 19 ; Passmore's Case, 1 S. & R. 217.) The defendants procured all necessary permits from the proper authorities to erect and carry on their plant in Union Square. (Bradley v. Mayor, etc., 65 App. Div. 293; Creed v. Hartman, 29 N. Y. 591; Jorgenson v. Squires, 144 N. Y. 283 ; Babbage v. Powers, 130 N. Y. 281; Boots v. Washburn, 79 N. Y. 207; Chicago City v. Robbins, 2 Black, 425 ; Robbins v. Chicago, 4 Wall. 679.) The Appellate Division, not having reversed the Special Term upon the facts but upon the law, this court will reverse the judgment of the Appellate Division and affirm that of the Special Term if the facts found support the judgment. (O. B. Co. v. Pearson, 73 N. Y. Supp. 541; Metcalf v. Moses, 161 N. Y. 587 ; Smith v. S. I. Co., 161 N. Y. 484; Wetmore v. Wetmore, 162 N. Y. 503; Schryer v. Fenton, 162 N. Y. 444; Spellman v. Looschen, 
      162 N. Y. 268; N. H. Co. v. Bement, 163 N. Y. 505; Spence v. Ham, 163 N. Y. 220; Van Beuren v. Wotherspoon, 164 N. Y. 368; Neuman v. N. Y. M. Assn., 164 N. Y. 248.)
    
      Charles F. Brown and John Delahunty for respondent.
    The structures erected by tlie defendants in connection with their use constituted a nuisance which caused special damage to the plaintiff. The buildings and the use to which they were put would have constituted a nuisance if they had been erected by a private individual upon his own property. (Campbell v. Seaman, 63 N. Y. 568 ; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 21; Bohan v. P. J. G. L. Co., 122 N. Y. 18; B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.) The fact that the defendants were engaged in the construction of a public work does not constitute a defense to this action. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Bohan v. P. J. G. L. Co., 122 N. Y. 18 ; Hill v. Mayor, etc., 139 N. Y. 495; Morton v. Mayor, etc., 140 N. Y. 211; U. S. v. Fisher, 2 Cranch, 390 ; B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317; Seifert v. City of Brooklyn, 101 N. Y. 136; Uline v. N. Y. C. R. R. Co., 101 N. Y. 125 ; Conklin v. N. Y., O. & W. R. Co., 102 N. Y. 107.) The undisputed facts bring the case within the rule that one who carries on a business in such a manner as to prove a nuisance to his neighbors is liable for damages, and the fact that the acts were done in the performance of work authorized by law is not a protection from liability. (Comm. v. Kidder, 107 Mass. 188; Hill v. Met. Asylum Dist., L. R. [4 Q. B.] 433; Hill v. Mayor, etc., 139 N. Y. 495.) The park commissioners had no power under the charter to authorize the erection of the structures complained of. (Callahan v. Gil-man, 107 N. Y. 360; Cohen v. Mayor, etc., 113 N. Y. 532; Speir v. City of Brooklyn, 139 N. Y. 6; People v. Kerr, 27 N. Y. 188; Sheehy v. Clausen, 26 Misc. Rep. 269; Ackerman v. True, 31 Misc. Rep. 598.) There is no provision in the Rapid Transit Acts which authorizes the erection of the structures complained of. (L. 1892, ch. 556, § 4; L. 1896, ch. 729, § 39; Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Kane v. N. Y. El. R. R. Co., 125 N. Y. 164; Halloway v. Southmayd, 139 N. Y. 390; Dillon on Hun. Corp. [4th ed.] 889; Brown v. Manning, 6 Ohio, 298; State v. Woodward, 23 Vt. 92; Pomeroy v. Mills, 3 Vt. 279 ; State v. Atkinson, 24 Vt. 448; Rutherford v. Taylor, 38 Mo. 315.) The plaintiff has no adequate remedy at law. As against such a nuisance as that complained of the courts of equity will afford a remedy by injunction. (Flynn v. Taylor, 127 N. Y. 596; Buchholz v. N. Y., L. E. & W. R. R. Co., 148 N. Y. 640; Garvey v. L. I. R. R. Co., 159 N. Y. 323.).
   Bartlett, J.

This action is brought by the lessee and proprietor of a hotel known as the Everett House ” in the city of Hew York, situated on the northwest corner of 17th street and Fourth avenue, against sub-contractors engaged in the construction of a portion of the subway in the city of Hew York, for an injunction restraining the defendants from maintaining certain buildings which are alleged to constitute a nuisance and to recover damages arising therefrom.

The Special Term dismissed the complaint, the Appellate Division reversed the order and the defendants come here stipulating for judgment absolute in case of affirmance.

The trial judge found, among other facts, that the hotel premises have a frontage of about 128 feet on Union Square and 168 feet on Fourth avenue, are five stories high and contain some 250 rooms, several restaurants, a café and a bar.

That the park known as Union square, as designated by law, extends to the northerly limit of the prolongation of the thoroughfare, which to the westward of Broadway and the eastward of Fourth avenue is known as 17th street.

That so much of the Union Square as is laid out as a park is of oval shape, and so situated that there is in front of the plaintiff’s hotel a paved place used as a thoroughfare for vehicles and about 150 feet wide.

conjecture without any support in the evidence. This I think is a mistake, since the record shows that the defendants’ witnesses, some of them experts, and a part of whose testimony is quoted upon the brief of the plaintiff’s counsel, while stating that it was possible to place the plant elsewhere or subdivide it, if the place could be found or procured, stated in almost the same breath that it would be impracticable to do so for very cogent reasons which they gave, and if done, the aggregate damage and public inconvenience woidd not be less. It is impossible to read the testimony as a w'hole and then say that the court was not authorized to make the finding in the very words that he employed. It is not quite fair, as it seems to me, for a court of last resort, reviewing a case upon findings, to fasten upon a single sentence in an entire finding and divide the sentence, adopting what is supposed to be favorable to the plaintiff and rejecting what is supposed to be favorable to the defendant, in order to work out, as matter of law, a nuisance from the language employed. It is admitted that the court used the short form of decision permitted by the Code and, hence, he is deemed to have found all the facts necessary to support his judgment since the decision has the same legal effect as the general verdict of a jury on the issues, as we have repeatedly held. This general verdict has not been disturbed by the reviewing court below, as it had the power to do upon the facts, and this court must accept the findings just as they are.

That the plaintiff sustained great annoyance and serious damage from the location and use of the thing of which he complains there can be no doubt. It is said that the damage is special which, I take it, means nothing more than that his damages are greater, relatively, than his neighbors generally have sustained. The amount of the damages cannot change the rule of law. The laborer in a tenement house who has been under like conditions and circumstances, damaged to the extent of one hundred dollars only, has the same standing in the courts to enforce his claim as the plaintiff. The answer to both claims is the same, and is to be found in the language of Judge Martin in this court (169 N. Y. 282): “ In.every civilized community controlled by governmental or municipal laws or regulations,. there are many cases where the individual must be subjected to remote or consequential damages or loss to which he ' must submit without other compensation than the benefit which he derives from the social compact.” This, in my opinion, is one of the cases referred to. The city, under the authority of the state, is engaged in a great public work that injuriously affects the business and property of hundreds of people on -the line of the work and in the vicinity. Many of them have been and are damaged proportionally as much and perhaps more than the plaintiff. The strain upon the nervous system of the aged and feeble and the sick from the constant blasting and other operations must be very great, and while the plaintiff has lost money, some of his neighbors may have suffered in a way that money cannot compensate. If he is entitled to be made good so are they. All that is necessary is that they bring to this court the finding of a jury or a court to the effect that the subway could have been located on some other street or at some other point. The legislature did not give express or specific directions to locate the railroad in any particular street, any more or in any other way than it gave like directions to locate the place' for the appliances necessary for its construction. All that was properly left to the local authorities, and if their decision does not protect the defendants from liability in this case for the alleged nuisance, neither would it protect them for converting the streets of the city into a broad and deep ditch, to the annoyance and damage of thousands of people. . If the thing complained of in this case is a nuisance so is the ditch, since both things were ■ located by the same authority. It does not help much to say- that we are not to be understood as formulating “ any general rule ” in this case. If the decision rests firmly upon law and reason that warning is superfluous. It is impossible to decide the case without laying down a rule applicable to all cases depending on the same or similar facts and legal principles. ' Surely it cannot be presumed that the plaintiff is the only person in the city who can make out such a case as we now have before us. If the plaintiff is able to spell out a nuisance from adverse findings upon which he was defeated at the trial, how will it be with others who may succeed at the trial and procure more favorable findings from a court that may feel constrained to follow our decision in this case and these findings are unanimously affirmed ? The truth is that the decision of any court' born of a struggle to give relief to a particular person, when thousands in the same community have relatively a similar grievance, is quite sure at some time and in some way to come back to plague and vex the court that made it, and then it must be explained away by some specious but flimsy argument or silentty ignored.

There is one passage in the prevailing opinion which seems to constitute the corner stone of the decision. Here it is : It is evident that the plant could be located in sparsely settled districts near the river front, and not cause a tenth part of the damage that would arise in maintaining it at the point selected by these defendants, or in the heart of the residential portion of the city, like Fifth Avenue, Madison Avenue, or some other localities that might be named.” But how is all that so evident ? Certainly not from the findings that are our sole guide as to the facts. Hence this is but another way of saying that the court, when hard pressed for a reason, will fling away the findings and act upon its own notions of the real situation. The natural and reasonable place for the appliances necessary to construct the work is at or near the locality where the work is to be done. The notion that they should have been placed at some point a mile or more distant is but an extreme and fanciful suggestion. It does not require an expert to see that such a thing, while possible, was not reasonable nor practicable. That is what the learned trial court has found, and I assume he was as well informed on that question as we are or can be. It was a question involved in the issues before him and of which he had jurisdiction. It is a question now of which we have no jurisdiction outside of the findings made. But the residents of the fashionable avenues named are to have the benefits of rapid transit practically at their doors, and is this court to hold that they must be exempt from the annoyance and damage incident to the construction of the tunnel, and that it should be shifted to the people in the sparsely settled districts, wherever that place is, or upon the people on the river fronts ? Hay more, are the defendants, the contractors building the subway, guilty of creating and maintaining a nuisance simply because they have not done enough to shift the annoyance from the former to the latter ? If that is law it must be that a noxious thing near one of the fashionable residences or hotels on one of these avenues is a nuisance, while the same thing, used in the same way, when placed near the home of a laborer or more humble man of business would not be a nuisance at all. Grant that the latter would not be able to prove more than ten per cent of the damage that the plaintiff has, as the court suggests, would the thing for that reason be any the less a nuisance ? If the thing complained of is a nuisance where it is, why would it not be a nuisance-if placed near the home of a laborer or mechanic? And yet the only ground of liability suggested in this case is the neglect of the defendants to favor the former by afflicting the latter. I have no doubt that all the reasons that have ever been or can be given to support, the judgment about to be rendered by this court in this case are fairly embodied in the opinion of the court, and those reasons there expressed will speak for themselves. The issue in this case is one of law, and in its last analysis a very plain and simple one. On the one hand it is asserted that the trial court found that the thing complained of was and is a nuisance, while on the other it is asserted that the finding is the other way and plainly to the effect that it is not a nuisance. Therein lies the whole controversy. We cannot advance one step towards the solution of this question by generalizing as to the extent of the plaintiff’s damages or speculating with respect to the part of the city where the thing in question should have been placed. All that is foreign to the question at issue and only tends to mislead. What is the fair meaning and legal import of. the language which the learned trial judge used in the findings ? That is the question and the whole question.

We have very recently held that a property owner sustaining damages in the form of a physical injury to his house and buildings, caused by a contractor in the one case and the city itself in the other when engaged in a public work, could not recover for the damage and injury in the absence of proof of negligence (Holland House Co. v. Baird, 169 N. Y. 136 ; Uppington v. City of N. Y., 165 N. Y. 222), and so this court has held that the temporary use of structures like the one in question in the construction of an aqueduct, injurious to adjoining property owners, constituted no cause of action in favor of the party injured against the city. (Lester v. Mayor, etc., of N. Y., 150 N. Y. 578, affg. S. C., 79 Hun, 479.) What the legal distinction, if any, is between the damages claimed in these cases and the damages claimed in this case I cannot perceive and no one has attempted to state. I am not in favor of making use of the equitable powers of the court, including the writ of injunction, for the sole purpose of coercing these defendants to pay money to the plaintiff, under the name of damages, which the latter could not recover in an action at law.

But I am mentally admonished that I must be wrong at some point in the discussion, since my learned brethren, for whose opinions I have great respect, even when given as in this case, dogmatically and without argument, differ so radically with me. I have endeavored, however, to make my reasons plain to the end that my error, if any, may be easily detected and readily refuted. I think the law and the facts in the case were correctly decided by the trial court and that there was no legal ground for reversing the judgment.

Since writing the above, Judge Cullen, another of my associates, has very wisely and properly thought it necessary to add something to the discussion. Agreeing entirely as he does with Judge Bartlett, who holds that upon the findings of the trial court as made the plaintiff was entitled to recover, he proceeds immediately to demolish these very findings, because made without what he calls sufficient evidence, and he cites a case to. prove that this court must sustain the reversal below upon the law when the findings have not sufficient evidence to support them.

Of course he does not mean quite what lie says, since the case cited does not hold anything of the kind. What it does hold is that this court in such a case may disregard the findings that have no evidence whatever to sustain them. If the evidence was. thought to be insufficient the court below should have reversed upon the facts, but I venture to say that no one will be able to point out a single finding made by the trial court that has not the support of at least some evidence. Indeed, it is difficult to see how any other findings could have been made. It is quite impossible, however, to reconcile the two opinions. They are inconsistent with each'pther and each is, in some respects, inconsistent in itself. Inasmuch as Judge Cullen agrees with Judge Bartlett, he must assume the findings in the record to be the findings in the case; and to stand upon the findings as made in one breath, and to throw them away as worthless in the next, does not strike me as a very logical or consistent method of argument. When we find one opinion standing squarely on the findings and the other agreeing with it, but at the same time seeking to destroy these very findings, there must be some confusion of thought or want of harmony in the argument. It only illustrates, however, the vague and illusive theories that may sometimes be used with the very best intentions to sustain a case. It would be much more satisfactory if we could- learn just what finding it is that is without sufficient evidence to sustain it if we are to review the case in that way. There was but one general, fundamental fact in issue in the case, and that was whether the thing complained of was or was not a nuisance. The plaintiff alleged that it was and the defendants denied that allegation. Therein was involved the whole issue of fact in the case, and it is obvious that the plaintiff could not succeed unless the trial court found that issue in his favor. That court not only refused to so find, but actually found that it was not a nuisance. All the other allegations of the complaint and the other findings are merely evidentiary. The trial court having negatived the fundamental fact in the •plaintiff’s case, this court cannot supply it unless the proof on that subject was conclusive in support of the plaintiff’s allegation that it was a nuisance. Eb one has yet ventured to say that. So we must go back to the point from which we started, and that is concerning the legal effect of the findings as made.

If the court found in terms, or in substance, that the thing is a nuisance, then this court, I admit, has some ground to stand upon; but otherwise not. The argument, or rather the assertion, that the use of the public place in question during the progress of the work is not temporary, while the use of the bed of the street for the same time is temporary, does not seem to me to meet the situation. The thing complained of is either temporary or permanent. Ho one has ventured to assert that it is permanent, and hence it must be temporary. The statute authorized the public authorities to grant such temporary privileges to the contractor for the purpose of facilitating the work, and the court found that the authorities did make the grant to the defendants. The city authorities consented, and so did the rapid transit commission. What does the statute mean by “ temporary privileges,” if it does not mean the use of some of the public places, like the one in question, while the work lasts ? It is so obvious that that was .the very purpose of the statute that it seems to me that there is no room for any other construction. It is not a very fair or intelligent answer to the question suggested above to say that whatever it means, it does not mean that the authorities have power to grant to the defendants the privileges which they did. That is only a bald assertion, unsupported by either reason or authority.

But it is said that the case of Morton v. Mayor, etc., of N. Y. is decisive of this case. That assertion seems to me very much like jumping at a conclusion. If there is no difference or distinction between the erection of a permanent power house that jars and shakes the walls of an adjacent dwelling house, and is to do that for all future time, rendering the house untenantable, and the use of the square in question, as it is used, only during the time that the work of constructing the tunnel lasts, then that case has some application here. But I supposed there was a very broad distinction in the circumstances of the two cases, and how any one can avoid seeing that distinction, even if he should try, is one of the many things in this case that I have not been able to understand. That case might just as well be cited to sustain an injunction against the defendants for opening the broad and deep ditch in front of the plaintiff’s hotel, since it would he just as applicable then as it is now. In both cases it is the occupation of a public place for the purpose of constructing a public work which is a damage to the plaintiff’s business.

It will be seen that Judge Cullen has ignored the finding of the trial court that the thing in question could not practically be placed elsewhere, without inflicting the same damage on some one else. He does not even claim that the finding is without evidence, and such a claim could not fairly be made on the evidence in the record.

I still think that the learned trial judge decided this case correctly. He did not allow sentiment or sympathy to enter into his' decision, but followed the jaw.

Gray, Haight and Werner, JJ., concur with Bartlett and Cullen, JJ. O'Brien, J., reads dissenting opinion, and Parker, Ch. J., concurs.

Ordered accordingly.  