
    RICHARDSON & BOYNTON CO. v. BARSTOW STOVE CO.
    
      N. Y. Supreme Court, First Department, Special Term;
    
    
      December, 1890.
    1. Highways; obstructing sidewalk by backing teams across to load' goods.] The sidewalk is constructed for and allotted to the use: of pedestrians, and its obstruction by defendants backing teams across it to load and unload goods from their store, cannot be justified upon the ground that it is necessary for the transaction of the defendants’ business. So held on motion for injunction pendente lite.
      
    
    2. The same; crowded business streeti\ This rule applies although. the street is crowded, and trucks could not be backed up at right, angles to the walk, without interfering with the passage of street cars.
    3. The same; city ordinance ; validity.] Such use of a sidewalk in the city of New York, cannot be justified under a city ordinance permitting it, as the common council is not authorized by § 86, of the Consolidation Act (L. 1882, c. 410) to pass such an ordinance, its power to allow obstruction of the street being limited to the case of temporary occupation thereof, during the erection or repair of a building.
    
    Motion for injunction pendente lite.
    
    This action was brought by the Richardson and' Boynton Company, a domestic corporation, against the Barstow Stove Company, a Rhode Island Corporation, and Herbert Talmadge, to restrain the defendants, from unnecessarily and unreasonably obstructing the westerly sidewalk of Water street, in New York city from Beekman street to the plaintiff’s store, by backing or driving any carts, wagons, trucks or horses on the sidewalk, or by loading, unloading or storing any packages or cases of goods thereon, so as to obstruct the same or impede passage thereon, or by maintaining an iron bridge or covering across the gutter along the sidewalk, or by any other unlawful obstruction or device.
    It appeared from the complaint and affidavits on which this motion was made, that the plaintiff had been engaged for some years in the wholesale and retail business of manufacturing and selling stoves, etc., on the west side of Water street, about fifty feet north from the northwest corner of Beekman street, and that the defendant corporation was also carrying on business, in the same line, at premises on the corner of Beekman and Water streets, adjoining those of the plaintiff, the defendant Talmadge being a truckman doing business with the company, and that they had obstructed the sidewalk in front of their premises, by backing their trucks with horses attached, during business hours, upon the sidewalk, loading and unloading, storing packages and goods thereon, and leaving the trucks, horses and packages upon the sidewalk daily for several hours at a time, so that the patrons of the plaintiff (eighty per cent of whom came from Beekman street), as well as its employees, were compelled to walk in the mid ¿le of the street, through mud and dirt, to reach the plaintiff’s store. To enable defendant’s trucks to back up on the sidewalk, it appeared that an iron bridge had been constructed across the gutter in front of the walk, so as to bring it to the level of the street.
    The allegations concerning the obstruction of the sidewalk by the placing and keeping goods thereon an unreasonable time, were denied by the defendants, and, in defence of its use of the sidewalk by backing and driving trucks thereon, the defendant corporation claimed that the roadway in Water street was traversed by the Second Avenue Railway Company under lawful authority; that the roadway and sidewalk were both very narrow ; that the car tracks occupied so large a portion of the roadway and ran so close to the curb as to prevent the keeping of. vehicles in the roadway while loading and unloading, without interfering with the cars, and that the street was a business thoroughfare for heavily loaded trucks; that it had been the custom of merchants in that locality, which was entirely given up to heavy business traffic, to use the sidewalk as defendant had done, allowing trucks to remain on the walk no longer than necessary for loading and unloading the goods, leaving sufficient room for any foot passengers to pass around the trucks, and that this custom was necessary for the safe and proper transaction of the defendant’s business and of the merchants in that locality, and, further, had been duly authorized by section 21 of the revised ordinances of the Common Council, which provided that “ it shall be lawful for the owner or occupant of any store, warehouse or building in any street or avenue in which the rails of any railroad company are laid so close to the curbstone as to prevent the owners or occupants from keeping any such cart or other vehicle in the ■carriage way in front of his place of business, without interference with the passing cars of any such railroad company, to occupy with such cart or other vehicle, during business hours, so much o.f the sidewalk •as may be necessary for such cart or other vehicles; provided that sufficient space be retained for the passage of pedestrians between the cart or other vehicles ■so permitted to occupy such portion of the sidewalk, and the stoop or front of every such store, warehouse or other building.” The defendant company also .averred that the iron bridge complained of was con-structed and maintained by the Second Avenue railway company under authority of an ordinance of the Common Council.
    In reply to this, the plaintiff produced affidavits showing that, though engaged in the same business as ■the defendant company, and using more trucks and selling heavier and bulkier goods, it had never used the sidewalk by backing its trucks across it, having no bridge over the gutter which would render this feasible, but had loaded and unloaded its goods from trucks while standing parallel to the sidewalk, so as to take up only about six feet of the street, leaving the sidewalk free and unimpeded, and that with a truck of the usual size, standing in that way, there was a distance of over four feet between it and the nearest car track.
    
      Charles Henry Phelps, for plaintiff and the motion.
    
      George H. Pettit, for the defendants, opposed.
    
      
       See People ex rel. Bentley v. Mayor, 18 Abb. N. C. 123; and Elias v. Sutherland, Ib. 126, with note on obstruction of sidewalks for business purposes. Id. 129.
    
    
      
       See Whitman v. Hubbell, 20 Abb. N. C. 355 ; People ex rel. Mullin v. Newton, Id. 387 ; People ex rel. Lynch v. Manhattan Ry. Co.,. Id. 393 ; Kiernan v. Newton, Id. 398.
    
   O’Brien, 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 Callanan v. Gilman (107 N. Y. 361), 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 thé 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. This is sought to be justified upon the ground that it is necessary for the-transaction of defendant’s business, and 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 narro\v, 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 People v. Cunningham (1 Denio, 524): “ The fact that defendant’s business was lawful does not afford them a justification in annoying the public in transacting it, because they have no right to occupy the public highway so as to impede the free passage to 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 defendant’s business. As was said in that case : “ The answer is to be found in the observations of the court in Russell’s case (6 East. 420) : ‘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 defendant’s business, this, would not authorize such use of the sidewalks.

A conflict, however, arises as to its being necessary for defendant's 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 wagon’s 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 of 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 (section 86 of the Consolidation Act of 1882 c. 410). 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, &c., but the provision with reference to encroachments and obstructions upon the streets, authorized the Common Council to make such ordinances to prevent obstructions, expressly limiting 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,  