
    Lawrence J. Callanan et al., Resp’ts, v. George F. Gilman, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed, November 29,1887.)
    
    1. Street obstructions—What are and when a public nuisance.
    Both, the plaintiffs and the defendant were extensive retail- and wholesale grocers, having stores near to each other on the same side of Yesey street-, in the city of New York. A large portion of the plaintiffs’ customers, in order to reach their store, were obliged to pass upon the sidewalk in front of the defendant’s store. Goods were taken to and from the defendant’s store by means of trucks loaded in the street. To reach the trucks a bridge, made of “skids,” was placed over the sidewalk, with one end resting upon the stoop of the defendant’s store and the other upon a wooden horse outside of the sidewalk, near the truck to be loaded. This bridge was elevated above the sidewalk, entirely obstructing the sidewalk, and goods were conveyed over the bridge to and from the store. Persons wishing to pass in front of the store when the bridge was in place were obliged to step upon the stoop and go around that end of the bridge. The bridge was usually removed when not in use, but sometimes remained m position when in use two hours and generally five hours each business day. Held, that such an extensive and continuous use of the sidewalk was unreasonable and was a public nuisance.
    '2. Same—When obstruction reasonable—When unreasonable.
    It was incumbent upon the defendant to show not only that the use he made of the sidewalk was necessary in his business, but also that it was reasonable in reference to the public convenience. He might use the bridge to load or unload a single truck at intervals during the day, at no time obstructing the street for any considerable length of time. An obstruction daily for hours, or even an hour, continuously is unlawful.
    3. Same—Hot sufficient to give public convenient passage—General rule.
    The defendant could not justify his unreasonable obstruction of the sidewalk because he gave the public a less convenient passage over his stoop. While temporarily obstructing the sidewalk he should have given pedestrians the best passage he could over his stoop. The general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance.
    4. Same—Pleading—Special damage—Injunction.
    The plaintiffs did not demand any damages in their complaint. They simply demanded an injunction restraining the nuisance. The complaint set forth the location of the stores of the parties, the character of the bridge, and the manner and extent of the obstruction upon the sidewalk, etc. Held, that special damages were sufficiently alleged to entitle plaintiffs to judgment demanded.
    5. Practice—Duty of judge to pass upon requests to find—Effect of refusal.
    It is the duty of the trial judge to find upon every material question of fact submitted to him and involved in the evidence. But his refusal to do so will not be an error fatal to his judgment if the findings asked were not material to the decision of the case or would not be beneficial to the party asking them.
    Appeal from a judgment of the general term of the superior court of New York city affirming a judgment in favor of the plaintiff entered at special term restraining the defendant from obstructing the street.
    
      Henry Schmitt, for app’lt; John E. Parsons and Edwin M. Wight, for resp’ts.
    
      
       Modifying 52 Supr. Ct., 112; see, also S. C., 67 How. Pr., 464.
    
   Earl, J.

The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the general rule bom of necessity and convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials, A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. But it is not sufficient that the obstructions are necessary with reference to the business of him who creates and maintains them. But they must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact to be determined upon the -evidence relating thereto. A reference to a few cases will show what courts have said upon this subject. In Rex v. Russell (6 East, 427), where the defendant, a wagoner, was indicted for occupying one side of a public street before his warehouse for loading and unloading his wagons, the court said “ that it should be fully understood that the defendant ■could not legally carry on any part of his business in the public street to the annoyance of the public; that the primary object of the street was for the free passage of the public, and anything which impeded that free passage without necessity was a nuisance; that if the nature of the defendant’s business were such as to require the - loading and unloading of many more of his wagons than could conveniently be contained within his own private premises, he must ■either enlarge his premises or remove his business to some more convenient spot.”

In Rex v. Cross (3 Camp., 224), the defendant was indicted for allowing his coaches to remain an unreasonable time in a public street, and the court said: “Every unauthorized obstruction of a highway to the annoyance of the king’s subjects is a nuisance. The king’s highway is not to be used as a stable yard. A stage coach may set down ■or take up passengers in the street, this being necessary for public convenience, but it must be done in a reasonable time, and private premises must be provided for the coach to stand while waiting between one journey and the commencement of another.” In Rex v. Jones (3 Camp., 230), the defendant, a lumber merchant in London, was indicted for the obstruction of a part of a street in the hewing and ■sawing of logs, and the court said: “If an unreasonable time is occupied in delivering beer from a brewer’s dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this

must.be done with promptness. So as to the repairing, of a house, the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience should be prolonged for an unreasonable time the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict, steady, application of it. I cannot bring myself to doubt the guilt of this defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway with his lumber yard, and if the street be too narrow he must move to a more convenient place for carrying on his business.” In The Commonwealth v. Passmore (1 Ser. & Rawl., 211), the defendant, an auctioneer, was indicted for a nuisance in placing goods on the foot way and carriage way of one of the public streets of the city and suffering them to remain for the purpose of being sold there, so as to render the passage less convenient, although not entirely to obstruct it, and the court said: “ It is true necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleas-use. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street provided it be done in the most convenient manner. On the same principle a merchant may have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it.

I can easily perceive that it is for the convenience and the interest of an auctioneer to place his goods in the street, because it saves the expense of storage, But there is no more necessity in his case than in that of a private merchant. It is equally in the power of the auctioneer and the merchant to procure warehouses and places of deposit in proportion to the extent of their business.” In the People v. Cunningham (1 Denio, 524), the defendants were indictee! for obstructing one of the streets in the city of Brooklyn, and the court said: “ The fact that the defendant’s 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 the citizens generally. The obstruction complained of is not of the temporary character which may be excused within the necessary qualifications referred to in the cases cited, but results from a systematic course of carrying on the defendant’s business. It is said that this business cannot be carried on in any other manner at that place so advantageously either to individuals or the public. The answer to this is to be found in the observations of the court in Russell’s case (above cited): “They must either enlarge their premises or remove their business to some more convenient spot. Private interests must. be made subservient to the general interest of the community.” In Welsh v. Wilson (101 N. Y., 254; 1 N. Y. State Rep., 19), a case where the defendant obstructed a sidewalk in the city of New York with skids a few minutes, while he was engaged in removing two large cases of merchandise from his store to a truck, in consequence of which the plaintiff claimed to have been injured while passing through the street, we said: “The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right to be exercised in a reasonable manner so as not to unnecessarily incumber and obstruct the sidewalk. In Mathews v. Kelsey (58 Me., 56), the court said: “As an incident to this right of transit, the public have a right to load and unload such vehicles (in the street or from the street) as they find it convenient to use. But in this respect each individual is restrained by the rights of others. He must do his work in such careful and prudent manner as not to interfere unreasonably with the convenience of others.”

Now what are the facts of this case? Both the plaintiffs and the defendant were extensive retail and wholesale grocers having stores near to each other on the south side of Vesey street in the city of New York, and a large portion of the plaintiffs’ customers, in order to reach their store, were obliged to pass upon the sidewalk in front of the defendant’s store. Goods were taken to and from the defendant’s store by means of trucks loaded in the street. The trucks were placed in the street adjoining the sidewalk, and then a bridge made of two skids planked over so as to make a plankway three feet wide and fifteen feet long, with side pieces three and one-half inches high, was placed over the sidewalk with one end resting upon the stoop-of the defendant’s store and the other end upon a wooden horse outside of the sidewalk near the truck to be loaded. This bridge was elevated above the sidewalk at the inner end about twelve inches, and at the outer end about twenty inches, thus entirely obstructing the sidewalk, and goods were conveyed over this bridge to and from the store. Persons wishing to pass upon the sidewalk in front of the store when the bridge was in place were obliged to step upon the stoop and go around that end of the bridge. The bridge was usually removed when not in use, but there was uncontradicted evidence that it was sometimes permitted to remain in position when not in use for ten or fifteen minutes, and that it sometimes remained in position when in use one hour, one hour and a half, and sometimes even two hours, and the .court found that the bridge thus remained in position across the sidewalk from four to five hours each business day between the hours of nine o’clock A. M. and five o’clock p. at., and that it obstructed the sidewalk the greater part.of every business day. Such an extensive and continuous use of the sidewalk cannot be justified. It was a practical appropriation by the defendant of the sidewalk in front of his store to his private use in disregard of the public convenience. Even if in some sense such use was necessary to the convenient and profitable transaction of his business, and if the obstruction of the sidewalk was no more and even less than it would be by any other method of doing the business, these circumstances do not justify the obstruction.

If the defendant cannot transact his extensive business at that place without thus encroaching upon, obstructing and almost appropriating the sidewalk during the business hours of the day, he must either remove his business to some other place or enlarge his premises so as to accommodate it. It was incumbent upon the defendant to show not only that the use he made of the sidewalk was necessary in his business, but also that it was reasonable in reference to the public convenience. That it was unreasonable is too clear for dispute. He might use the bridge to load or unload a single truck, and this he could do at intervals during the day, at no time obstructing the street for any considerable length of time. But there is no authority and no rule of law which would warrant such an obstruction daily for hours, or even one hour continuously. The defendant was, therefore, guilty of a public nuisance.

But the defendant claims that the plaintiffs did not allege in their complaint nor prove such special damages as entitled them to maintain this action. It is the undoubted law that the plaintiffs could not maintain this action without alleging and proving that they sustained special damages from the nuisance different from that sustained by the general public; in other words, that the damages they sustained was not common to all the public living or doing business in Vesey street and having occasion to use the same.'

The plaintiffs did not demand any damages in their complaint, and none were awarded to them by the judgment. They simply demanded an injunction restraining the nuisance, and such was the judgment given to them.

The complaint sufficiently alleges the special damages. It sets forth the location of the stores of the parties on the •same side of the street near to each other, the character of the bridge which, when in use by the defendant, was only thirty-five feet from plaintiff’s store, and the manner and -extent of the obstruction upon the sidewalk. From these facts alone, as they are fully set forth, it clearly appears that the plaintiffs suffered damage from the nuisance which was not common to other persons having occasion to use the street. But the complaint goes still further and distinctly alleges that the obstruction prevents “ the plaintiffs and their employees or patrons and all persons from passing along said sidewalk to and from Church street, and to and from plaintiffs’ said store, to the detriment and great injury of plaintiffs and their said business;” that the ■obstruction had been maintained for more than six months prior to the commencement of the action on an average of five hours each day during the business hours of the day “to the great and irreparable injury of the plaintiffs.” While the complaint is not very definite as to the particular damages suffered by the plaintiffs and the extent thereof, there is enough to show that they suffered some special damage, and if the defendant was not satisfied with the complaint in these respects, he should have moved to make it more definite or for a bill of particulars. The defendant having taken issue upon the complaint and gone to trial, it must be held sufficient to warrant the proof given.

The facts proved and found show special damage from the nuisance to the plaintiffs. There was some proof that some custom was turned from the plaintiffs’ store on .account of the obstruction, and that pedestrians were turned to the north side of the street before reaching plaintiffs’ store. That the plaintiffs suffered some special damage not common to persons merely using the street for passage, is too obvious for reasonable dispute. Direct proof ■of the damage was not needed. All the circumstances show it.

It is further objected on the part of the defendant that ■some of the material findings of fact made by the trial judge were not upheld by any evidence. A careful scrutiny of the evidence fails to satisfy us that this objection is well founded. On the contrary, the undisputed evidence showed the nuisance, the special damage and the right of the plaintiffs to a judgment restraining such nuisance. The evidence of the defendant was directed mainly to show that the bridge was necessary in his business; that skids and other similar appliances were in common use by merchants in the city, and-that he left a passage way for pedestrians on and over his stoop. The alleged necessity, as we have shown, furnished the defendant no justification for the nuisance, and it may be conceded that similar appliances are quite common in New York. It is not the nature of these appliances that furnishes the basis of our judgment, but its unreasonable use. ,

• The defendant could not justify his unreasonable obstruction of the sidewalk by snowing that-he allowed pedestrians to pass around or through his store or over his elevated stoop between moving barrels and packages. The 'stoop is no part of the sidewalk and the defendant could not appropriate that to his private use and substitute his stoop for the public convenience. While temporarily obstructing the sidewalk he should give pedestrians the best passage he can over his stoop. But this should be a temporary, not a permanent shift. He cannot justify the obstruction of the sidewalk for hours because he gives the public a less convenient passage over his stoop.

The trial judge refused to make any findings upon certain questions of fact submitted to him, and this is now complained of as error. It is the duty of the trial judge_ to find upon every material question of fact submitted to him, and involved in the evidence. But his refusal to do so wifi not be an error fatal to his judgment if the findings asked were not material to the decision of the case, or would not be beneficial to the party asking them. Among the findings thus submitted on the part of the defendant were the following: That the defendant uses the place complained of at a time and in a manner that is reasonable under all the circumstances; that the use of the sidewalk by the defendant does not unreasonably abridge or obstruct the passage of pedestrians.” The judge should properly have found upon these questions, but upon the undisputed evidence he should have found against the defendant, and therefore he has suffered no -harm from the neglect or refusal to find. The facts:proved by .uncontradicted evidence and found showed that the obstruction was unreasonable. If the trial judge had responded to these findings in favor of the defendant, and had yet rendered judgment against him, the judgment would still have been based upon sufficient facts and could not have been disturbed. The opinion and conclusion of the trial judge, notwithstanding the other facts found that the obstruction caused by the defendant was not unreasonable would not have been controlling, and would not have sustained a judgment in favor of the defendant. Such a judgment would have been against the evidence. .

But the judgment rendered is too broad and general in its terms. It is as follows: ‘ ‘ That plaintiffs are entitled to an injunction perpetually restraining the defendant, his agents, servants or employees, from obstructing the southerly sidewalk of Yesey street, in front of premises Nos. 35 and 37 Yesey street, by any plank way or bridge, or other like obstruction, elevated above the sidewalk, and reaching from said store, or from the stoop in front of said store to the roadway of said Yesey street, or from hindering or preventing the plaintiffs or their employees, servants and customers from having the free and unobstructed use of and passage along the sidewalk of said Yesey street, in front of said premises Nos. 35 and 37 Yesey street, by any like obstruction.”

The judgment entirely prevents the defendant from using the bridge or other like obstruction. We find nothing in the evidence which justifies this. We cannot perceive that the bridge is in any material degree a greater obstruction than skids would be if similarly used. The judgment should be so modified as to read as follows: “It is ordered and adjudged that the defendant, his agents, servants and, employees, refrain from unnecessarily or unreasonably obstructing the southerly sidewalk of Yesey street, in front of the premises Nos. 35 and 37 Yesey street, by any plankway or bridge, or other like obstruction elevated above the sidewalk,, and reaching from said premises, or from the stoop in front of the same, to the roadway of said Yesey street, or from unnecessarily or unreasonably hindering or preventing the plaintiffs or their employees, servants and customers from having the convenient use of and passage along the sidewalk of said Yesey street, in front of said premises Nos. 35 and 37 Yesey street, by any like obstruction; and it is further adjudged that the plaintiffs recover of the defendant $164.20, costs of this action,” and, as so modified, it should be affirmed, without costs to either party in this court.”

It is is difficult to frame the judgment by the use of general language so as to protect and secure the rights of the parties. But the rules we have laid down in this opinion will probably be found sufficient as a guide if it should be necessary to enforce the judgment as modified, and therefrom the meaning and scope of the important words “unnecessarily” and “unreasonably” may with sufficient accuracy be ascertained.

All concur, except Rapallo, J., absent.  