
    The Richardson & Boynton Co., Resp’ts, v. The Barstow Stove Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    1. Nuisance—Obstruction oe sidewalk.
    An adjacent occupant of a building upon the street has no right to appropriate the sidewalk for the purpose of his business by backing or placing vehicles upon it and thereby obstructing and preventing the use of it by persons lawfully passing along the street on foot.
    8. Same—Injunction.
    Where the affidavits used on the motion, as well as admissions in the answer, clearly establish the fact that defendant did create such an unlawful obstruction in the course of receiving and delivering goods, it is proper to continue an injunction pendente lite until the trial of the action.
    
      Appeal from an order enjoining the defendants pendente lite from “backing, driving or otherwise placing any carts, wagons, trucks, vehicles, horses or other animals on the westerly sidewalk of Water street, between Beekman street and plaintiff’s store. Both the plaintiff and defendant are wholesale dealers and manufacturers of furnaces, ranges and stoves, etc. They occupy adjoining warehouses in Water street, near Beekman street, in this city, and are engaged in precisely the same business.
    The following is the opinion below:
    O’Brieít, J.—This action is brought to obtain an injunction restraining the defendants from: First, unreasonably using the
    sidewalk in front of their premises, by loading, unloading and storing their goods thereon; and, second, from maintaining a permanent bridge or covering across the gutter and using the same for backing and driving wagons over the sidewalk.
    As to the first, until the trial of the action, no .injunction should be granted, as it is impossible to determine from the conflicting affidavits as to whether or not the use made of the sidewalk for loading, unloading and storing goods is unreasonable. If upon the trial it can be shown that by such use the sidewalk is unnecessarily obstructed, then within the principle laid down in Callarían v. Gilman, 107 N. Y, 361; 12 N. Y. State Rep., 21, it will be enjoined. The second ground for which the temporary injunction is sought, is as to the right of the defendant to maintain the permanent bridge over the gutter and to use the same for the purpose of driving wagons and trucks upon the sidewalk. As to the bridge itself, the question of its removal should also be left until the trial of the action ; for it is made to appear that the same was constructed pursuant to an ordinance of the common council, and while its use as a means of ingress and egress to and from the sidewalk may not be justified, it may be proper for uses or purposes which upon a consideration of all the facts would be lawful. The real question therefore remaining is, as to the right of the defendant to be allowed to drive or back teams or trucks on the sidewalk. That is sought to be justified upon the ground that it is necessary for the transaction of plaintiffs’ business and is a reasonable use of the sidewalk, having regard for the rights of the public. This precise question has not been directly passed upon, but upon principle and reason it does not seem to me that such use of sidewalks can be justified. In the division of the space between the houses provision is made in the street for wagons and carts, and the sidewalks are constructed for and allotted to pedestrians.
    The claim that because the street is narrow, such use of the sidewalk is justified, does not seem to me to have much force, for no good reason is shown why pedestrians should be prevented from traversing over a sidewalk in a narrow street any more than on a sidewalk in a wider and broader avenue.
    It is evident that in a narrow street like Nassau, or in Broadway, Fifth, Sixth or any of the' larger avenues and streets, the obstruction of the sidewalk by wagons and trucks would be the subject of just comment and complaint. As was said in the case of The People v. Cunningham, 1 Denio, 524: “ The fact that defendants’ business was lawful does not afford them a justification in annoying the public in transacting it: it gives them no right to occupy the public highway so as to impede the free passage of it by citizens generally * *
    To justify this use of the sidewalk the same argument is advanced as was in the case of Callanan v. Gilman, supra, that such use of the street is necessary to the transaction of the defendants’ business. As was said in that case: “ The answer is to be found in the observations of the court in Bussell's case, 6 East, 427: ‘ They must either enlarge their premises or remove their business to some more convenient spot.’ Private interests must be made subservient to the general interests of the community.” Even though -necessary for defendants’ business, this would not authorize such use of the sidewalks. A conflict, however, arises as to its being necessary for defendants’ business to back wagons upon the sidewalk, the plaintiff showing that they are in the same business, have a larger trade carried on in the adjoining store, and that they have never found it necessary to back their wagons and trucks upon the sidewalk. Neither does it appear that their being prevented from driving on the sidewalk would interfere with the cars of the Second Avenue Railway Company, which has a track in that street, for it is shown by accurate measurements taken that the distance from the curb to the nearest railroad track is ten feet, and that with a truck standing upon the street there would still be a clear space four feet and three inches between it and the track. This, of course, would not permit the truck to back up at right angles with the curb. But this is not shown to be necessary, for the plaintiff, with the same class of goods, loads its twelve or more trucks while standing sideways to the sidewalk, occupying less than six feet of the street and not trespassing at all on the sidewalk.
    The second ground upon which the defendant seeks to justify the use of the sidewalk is that such use is authorized by ordinance of the common council § 86 of the consolidation act of 1882. Under this authority it is claimed that the common council has exercised its powers, and in its revised ordinances has expressly authorized such use of Water street and its sidewalks.
    Apart from the constitutionality of any such enactment, it is doubtful if the consolidation act relied upon conferred any such power upon the common council. Section 86 conferred upon the common council the power to make ordinances to regulate the use of streets, etc., but the provision with reference to encroachments and obstructions upon the streets authorized the common council to make such ordinances to prevent obstructions, and expressly limited its power to authorize the placing or continuing of any encroachment or obstruction upon the street, to the temporary occupation thereof during the erection or repair of a building. It is sufficient, for the purpose of this motion, that the use to which the sidewalk is to be put by the defendant is not the ordinary use for- which sidewalks were intended, and in the absence of any clear authority permitting the same, it should not, to the injury of
    
      the plaintiff and the public generally, be tolerated or allowed. The defendant, therefore, having failed to justify such use, the same should be prevented during the continuance of the action, leaving the question for final determination to the court upon the trial. Ordered accordingly.
    
      O. H. Pettit, for app’lt; O. H. Phelps, for resp’ts.
   Daniels, J.

Neither the case of Welsh v. Wilson, 101 N. Y., 254; 1 N. Y. State Rep., 19, nor that of Callanan v. Gilman, 107 N. Y., 373; 12 N. Y. State Rep., 21, carry the right of an adjacent occupant of a building upon the street so far as to permit the appropriation of the sidewalk for the purposes of his business by backing or placing vehicles upon it and thereby obstructing and preventing the use of it by persons lawfully passing and repassing along the street on foot; and there is no principle intimated by either of these cases that will excuse such an obstruction,or use of the sidewalk. If that were permitted then the sidewalks upon business streets would become practically useless by their occupation for persons passing along the walks and having the paramount right to use them.

The affidavits as well as the admission in the defendant’s answer are abundant to establish the fact that it did create this unlawful obstruction in the course of receiving and delivering goods; and sufficient has been presented by them clearly to justify the continuation of the injunction until the action can be tried and the rights and obligations of these parties disposed of upon the hearing of the evidence at the special term.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., concurs.  