
    The People of the State of New York ex rel. David Pumpyansky, Appellant, v. James P. Keating, Commissioner of the Department of Highways of the City of New York, Respondent.
    
      1Jews stands under the stairs of elevated railroad stations in JJeio Trn'lc, city — the municipal assembly cannot authorize them — a citizen may apply for a mandamus to compel the commissioner of highways to remove them — the Legislature might authorize them.
    
    The omission from subdivision 3 of section 49 of the Greater New York charter (Laws of 1897, chap. 378), which is a revision of subdivision 3 of section 86 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1896, chap. 718), of a provision of the latter act, authorizing the common council to grant permits for the erection of stands in the space underneath the stairs leading to the elevated railroad stations in that city, operated to repeal that provision.
    If the municipal assembly assumes to grant a permit for the erection of such a booth, a resident and citizen of the city of New York may institute a proceeding for a writ of peremptory mandamus, directed to the commissioner of highways of the city, commanding him to remove the booth, or to cause the same to be removed, notwithstanding that the relator has no special interest in obtaining the relief sought.
    Where a writ of mandamus is sought to enforce a right which concerns the general public, the relator need not show special interest. It is otherwise where the writ is intended to enforce a private right.
    
      
      Semble, that it would he competent for the Legislature to authorize the municipal authorities to grant permits for the construction of booths in the spaces underneath the elevated railroad stairways.
    O’Brien and McLaughlin, JJ., dissented.
    Appeal by the relator, David Pumpyanslcy, from an order of the Supreme Court; made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1901, denying the relator’s motion for a peremptory writ of mandamus.
    
      Otto JET. Droege, for the appellant.
    
      Chase Méllen, for the respondent.
   Hatch, J. :

This is an application for a writ of peremptory mandamus directed to the defendant as commissioner of highways of the city of New York, commanding him to remove or cause to be removed from the street or sidewalk of the southerly side of West Twenty-third street, west of its intersection with the westerly side of Sixth avenue, a stand or booth used and maintained for the purpose of vending newspapers and periodicals. West Twenty-third street and Sixth avenue are public highways of the city of New York and under the control of the respondent. At the southwest corner formed by the intersection of said streets there is a stairway leading from the street below to a station of the Manhattan Elevated railroad at that place, and underneath this stairway there has been erected a stand or booth, used and occupied for the purpose mentioned. This booth was erected by one Dunlop under a permit issued by the municipal assembly October 4, 1900, authorizing him to erect and maintain the same for the period of one year. It is admitted that the said permit was issued pursuant to the provisions of sections 680 to 683, inclusive, of the revised ordinances of the city of New York under the authority of chapter 718 of the Laws of 1896, which amended subdivision 3 of section 86 of the New York City Consolidation Act (Laws of 1882, chap. 410). It is contended by the relator" that the act of 1896, above referred to, was repealed by the Greater New Ymk charter (Laws of 1897, chap. 378), and that, therefore, the municipal assembly had no authority to grant permission for the election and occupancy of such a structure, and its act in so doing is illegal and void.

The controversy presents for determination simply questions of law : 1. Has the relator, merely as a resident and citizen of the city of New York, a right to maintain this proceeding % .2. Has the municipal assembly power and authority to grant such a license as the one in question for the use of the public highways of the city ?

It is plain that the relator has standing to maintain this proceeding. The right which the writ seeks to enforce affects the general public, and, under such circumstances, the enforcement of the right, is the concern of every citizen, and no special interest, except that of the general public, need be shown. (People v. Collins, 19 Wend. 56 ; People ex rel. Waller v. Supervisors, 56 N. Y. 249; Chittenden v. Wurster, 152 id. 345.) The rule is otherwise where the relator seeks to enforce a private right. In such case his special interest must be set out in the petition and his right to relief must be made clearly to appear. No obstacle stands in the way, therefore, of the maintenance of this proceeding by the relator.

It is a well-settled general' proposition of law that no authority exists in the Legislature to authorize an encroachment upon a public street which interferes with its use by the general public for the benefit of a private person. Encroachments of such a character constitute the same a nuisance, and their existence is without. legal authority, whether they be directly authorized by the Legislature or indirectly by the delegation of power to municipal bodies. But like most.general rules of law there are exceptions to this rule,, illustrations of which are found in Callanan v. Gilman (107 N. Y. 361); People v. Baltimore & O. R. R. Co. (117 id. 150); Palmer v. Larchmont Electric Co. (158 id. 231). Within such limitations there is no invasion of any constitutional right possessed by the general public. (Jorgensen v. Squires, 144 N. Y. 280.)

It appears from the present record that the structure which is sought to be removed in the present case is placed upon that part of the street directly underneath the stairway of an elevated railway station and. occupies a space fourteen feet and six inches in length by about four feet and eleven inches in width. The stairway rises at quite an acute angle from the sidewalk, and from the point at which the end of the news stand is placed against the stairway to its extreme end along the street the height from the street to the stairway varies corresponding to the angle, until at the easterly end of the stand the distance from the sidewalk to the stairway is about seven feet and six inches. It is quite evident that for the greater part of the distance no use could be made by the general public of this portion of the sidewalk, as the elevated railway structure practically excludes the use of the street for purposes of passage and amounts to an appropriation of the space until it reaches such a height that passage under it is practicable. The news stand, therefore, as constructed, cannot be said to furnish any obstruction at all to the public use of the street, except for a distance at its extreme end of about a foot. It is quite evident, therefore, that as matter of fact little basis exists for saying that the news stand operates to obstruct the street, or that it deprives the public of the practical use of the same for purposes of passage. In fact, the railroad structure has already made practical appropriation of the space in the street occupied by the news stand and practically excludes the public therefrom. We see no reason, therefore, why the appropriation of this part of the street for the erection of a news stand does not fall clearly within the exception and allows the Legislature to authorize the municipal authorities to grant the right to occupy this space with the structure of which complaint is made. In reality it is a waste portion of the public street, created by the appropriation of it by the railroad company for a public purpose, and we see no reason why the Legislature may not authorize the use of this portion of the street for this purpose; indeed, it is for the distinct benefit of the city, as it derives a revenue therefrom and it does not constitute an unreasonable invasion of the public right; under such circumstances, it would seem to be clearly authorized.

For a considerable number of years the Legislature has authorized the municipal authorities to grant permits for the erection and maintenance of these structures. Their existence does not seem to have in an appreciable degree interfered with the beneficial enjoyment and use by the general public during this considerable period of time. We should have little difficulty, therefore, in disposing of this proceeding in favor of the defendant based upon these considerations. Assuming, therefore, that the structure is of a character the erection and maintenance of which may be authorized by the Legislature, we áre' confronted with the proposition that, inasmuch as it is in fact an appropriation of a part of the street for private use, it must be sanctioned by some law giving to the municipal authorities the right to grant a permit for its erection and maintenance. By the provisions of subdivision 3 of section 86 of the Consolidation Act, as amended by chapter 718 of the Laws of 1896, authority was vested in the common council of the city to regulate the use of sidewalks “ and also to grant permits for the erection of booths and stands in or on the space immediately underneath the steps of stairs leading to and from the elevated .railroad station and within the curb line for the sale of newspapers and - periodicals,” limiting the space thus to be occupied to the width of the stairway and in length to a point where the under surface of the stairs should not be at a- greater height than seven feet from the sidewalk. It is clear that this act conferred authority upon the common council to authorize the erection and maintenance of the structure now sought to be removed. These provisions of law, however, as we-shall hereafter show, were repealed by the Greater Hew York charter, and being so repealed the only present authority existing in the municipal authorities to authorize this structure must be found in the provisions of the charter, as it is not contended that any other law exists conferring it.

Sections 1608, 1609.and 1610 of the charter make provision for the effect of the charter upon the Consolidation Act and define in what respects it is repealed and in what it is still in force. Section 1608 repeals the Consolidation Act so far as any provisions thereof are inconsistent with the provisions: of this act, or so far as the subject-matter thereof is revised or included in this act, and no further.” Section 1609 provides that the mere omission from the act of provisions of previous acts, including the. Consolidation Act, relating to or affecting the municipal corporations or any of them which áre thereby united, shall not be held a repeal thereof; and section 1610 provides that all the permanent acts relating to the corporation of the mayor, aldermen and commonalty of the city of Hew York, in force when the charter took effect, which are consistent with this act and its purposes, and which are not revised and included in or the subject-matter thereof covered by this act,” are extended to the greater city created by the act. By subdivision 3 of section 49 of the charter, the section by which the municipal, assembly is empowered to make ordinances, provision is made for the regulation of the same uses of the streets of the city as is made in the amendment to the Consolidation Act (Laws of 1896, chap. 718), that isj the subdivision revises and includes therein the same subject-matter, viz.: To regulate the use of streets, highways, roads, public places .and sidewalks * * *, and to prevent encroachments upon and obstructions to the same, and to authorize and require their removal by the proper department; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repairing of a building on a lot opposite the same, nor shall they permit the erection of booths and stands within stoop lines, except for the sale of newspapers, periodicals, fruits and soda water, and with the consent in such cases of the •owner of the premises.” This provision is a revision of the matter ■contained in the act of 1896 and a re-enactment of a portion of such net, but the Legislature has left out of it that portion of the Consolidation Act which related to stands and booths under stairways of the elevated railroad structures.

In view of the nature of the enactment and the language of the various sections claimed to operate as saving clauses, it seems clear that it was the intent to repeal so much of the Consolidation Act as authorized the municipal assembly or the board of aldermen to permit the use of the streets for the purpose of erecting and maintaining stands and booths in the location this one occupies, and to confine the same to stoop lines ” and to cases where the consent of the ■owner can be secured. Any. other construction violates the language of the subdivision and of the so-called saving clauses. To hold that such provision is not repealed is to hold that in force which is clearly inconsistent with the provisions of the charter and the ■subject-matter of which is revised and included in the charter. If it had been the intent to retain both the provisions of the act of 1896 as to stands and booths and their location, it is evident that the Legislature would have expressed the intent in some way other than by the very general language of the saving sections. It would mot have carefully re-enacted the provision as to stands and booths "within stoop lines and said nothing about the other locations mentioned in the act of 1896. Such a construction would do violence to the express language of the charter — “ shall have no power to authorize the placing or continuing of any encroachment or obstruction * * * except the temporary,” etc.; nor shall they permit the erection of booths and stands * * *, except,” etc. This language is clearly mandatory, and to hold the act of 1896 in force is to create exceptions not contained in the revision, and also to overthrow the limitation as to stoop lines, and in effect say that the municipal council may permit stands and booths in other localities than within stoop lines, and without the consent of the abutting owners.

It seems to us manifest that the provisions of the act of 1896 permitting the erection of such stands and booths as the one in question are repealed, and the relator is entitled to the relief for which he prayed.

If we are correct, therefore, in this view, there did not exist any authority in the municipal assembly to grant a permit for the erection of this structure, consequently there is no authority for its existence. It follows that the Order should be reversed, with ten dollars costs and disbursements, and the writ directed to issue, with ten dollars costs. <

Patterson and McLaughlin, JVL, concurred; O’Brien and Laughlin, JJ., dissented.

Laughlin, J. (dissenting):

It is not clearly shown that the news stand constituted an unlawful obstruction of the public street or is a nuisance per se, and the refusal of the court to award the writ of mandamus was the exercise of a sound judicial discretion.

The ordinance under- which the license was,, in form at least, regularly issued, was lawfully enacted at a time when there was express legislative authority therefor (Laws of 1882, chap. 410, § 86, subd. 3, as amd. by Laws of 1888, chap. 115, as further amd. by Laws of 1896, chap. 118), and it still remains upon the records of municipal laws as a valid and subsisting ordinance. The licensee presumably paid the fee prescribed by the ordinance upon the faith of the license^ and in reliance thereon also erected the news stand. He is not a party to this proceeding, nor is liis presence necessary. (Matter of Bohnet, 8 App. Div. 293; 150 N. Y. 279.) His interest, if any he have, finds protection in the court which refrains from using this high prerogative writ where the right thereto is open to question or where vested rights of other parties may be affected, and this is further emphasized by the universal rule that no return can be made to this State writ, except that it has been executed according to the command thereof. In brief, the office of the writ of mandamus is to enforce a plain legal djity. It behooves the court, therefore, to proceed with caution and discretion to the end that the issue of the writ may not be directed excepting in a case where the right thereto is clear and does not rest in doubt. (Reading v. Commonwealth, 11 Penn. St. 196; People ex rel. McMackin v. Board of Police, 107 N. Y. 235; People ex rel. McManus v. Thompson, 32 Hun, 93; People ex rel. Wood v. Assessors, etc., 137 N. Y. 201; People ex rel. Lynch v. Manhattan Railway Co., 20 Abb. N. C. 397.)

It must be borne in mind, in determining this appeal, that the city owns in trust the fee of the street in question. The facts are clearly stated in the prevailing opinion, and it appears therefrom and is therein conceded that this news stand does not materially obstruct public travel or traffic. The travel and traffic longitudinally along the street is not in the least obstructed by the news stand, for at this point such travel is lawfully obstructed for a greater width by the elevated railroad stairway. For does it appear that it obstructs public travel or traffic transversely across the street. It is not located within the lines of a crosswalk. As is well stated in the prevailing opinion, this stand could not obstruct travel or traffic for more than one lineal foot at the point farthest from the foot of the stairway and the entire space occupied by the stand may be said to be a waste portion of the public street. While technically an obstruction, practically it is no obstruction at all. The court is not obliged to send forth this extraordinary writ for the removal of every trifling obstruction which does not in fact obstruct travel or traffic. The relator is not an abutting owner, and even though an abutting owner might maintain the writ, it cannot be issued, at the behest of another for his benefit or upon grounds which might afford him a right to such remedy. (People ex rel. Simon v. Mayor, 20 Misc. Rep. 189.) It is expressly provided in section 41 of the Greater Few York charter (Laws of 1897, chap. 378) that the ordinances of the city of New York, in force at the time of its enactment, “ so far as the same are not inconsistent ” therewith, are continued in full force and effect in said city subject to modification, amendment or repeal by the municipal assembly. It is very doubtful whether this ordinance has been repealed by the Greater New York charter. The power of the municipal assembly to enact ordinances under subdivision 3 of section 49 of the present charter and the prohibitions therein should not be construed in case of doubt against the city’s power. The Legislature, by providing for certain exceptions to the prohibition against authorizing the placing or continuing of encroachments or obstructions upon the street, did not intend to prohibit any and all other encroachments or obstructions. If it did, obstructions incident to local improvements in, over or Under the streets, the erection of temporary reviewing stands and all other obstructions, even of a temporary nature, excepting those made during the erection or repairing of a building on a lot opposite the same,, and excepting, also, those expressly authorized within the stoop lines, would be unlawful and subject to removal forthwith by this summary process upon the application of any citizen. Obstructions of a similar kind to those excepted are doubtless prohibited. (Tinkham v. Tapscott, 17 N. Y. 141.) A news stand in an unused, and practically useless part of a public street does not constitute an obstruction similar to building material and structures which occupy part of the traveled street or walk and seriously impede public travel • or traffic.

The prohibition against allowing the erection of news stands within stoop lines, without the consent of the adjacent owner, does necessarily prohibit their erection elsewhere. Although it is not free from doubt, I am of opinion that the express authority contained in the amendment of 1896 to enact ordinances in the future granting licenses to erect news stands under elevated railroad stairs has been repealed by the Greater New York charter on the theory that the latter statute contains a revision of the laws on that subject. That, however, is not decisive of the case at bar. I think that the city, by virtue of its ownership of the fee and its general power and control over the streets, and its authority to enact ordinances to regulate the use of the streets, and the general welfare clause, possessed ample authority to authorize the erection of such a news stand in such location and of such dimensions both before the enactment of the amendment of 1896 and since the revision contained in the Greater Eew York charter by which the express language of said amendment was omitted. The enactment of the amendment raises no presumption that the authority did not previously exist, and, if it did so exist, the repeal of the amendment would not repeal the ordinance even if there were no reservation in that regard. (Suth. Stat. Const. § 329; Trustees of Erie Academy v. City of Erie, 31 Penn. St. 516, 517; Chamberlain v. City of Evansville, 77 Ind. 542.) It is expressly provided in section 50 (Greater Eew York charter) that the legislative power of the municipal assembly to enact ordinances shall not be deemed limited by the enumeration of powers contained in section 49, and further authority in the form of a general welfare clause to enact additional ordinances is therein conferred.

It not having been clearly established as matter of law that this news stand washer se a nuisance and a substantial obstruction, its removal should not be compelled by mandamus.

O’Bbien, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  