
    In the Matter of The People of the State of New York ex rel. Margaret H. Foot, Appellant, for a Mandamus, v. John Gross, as President of the Village of Tarrytown and Purdy Williams, as Street Commissioner of Said Village, Respondents.
    Second Department,
    March 31, 1910.
    Mandamus — denial of knowledge or information insufficient—village — encroachment on public street — public nuisance — duty of officers to abate — respective duties of village president and street commissioner — mandamus —party ---right of taxpayer to petition.
    A denial of knowledge or information sufficient to form a belief as to the truth of the allegations of a petition for -a peremptory writ of mandamus is insufficient to raise an issue.
    A picket fence erected by a landowner so as to encroach upon a public highway of a village is a public nuisance, and the officers of the village are under a duty to abate it.
    Where, pursuant to the authority of sections 90 and 141 of the Village Law, the trustees passed an ordinance forbidding encroachments and nuisances upon public streets under a. penalty, the ministerial duty of abating such encroachments or nuisances is cast upon the village president by section 80 of the Village Law.
    Section 84 of the Village Law, defining the duties of a village street commissioner, imposes no duty to abate encroachments upon the public streets, and he is not required to- do so until action has been taken by the president under the village ordinances.
    The fact that a landowner in a village has a private interest in securing the removal of an encroachment upon a public street does not deprive her of the right to compel the village authorities to abate the nuisance by'mandamus. Woodward, J., dissented, with opinion.
    Appeal by the relator, Margaret H. Foot, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of November, 1909, denying the relator’s motion for a writ of mandamus.
    
      Hartwell T. Heath [ Walter F. Peacock with him on the brief], for the appellant.
    
      Clarence 8. Davison, for the respondents.
   Carr, J.:

The petitioner is a taxpayer and resident of the village of Tarry-town. On a verified petition she applied at Special Term in Westchester county for a peremptory writ of mandamus against the president and street commissioner of the village, requiring, them to remove .from a certain public highway in that village known as Cobb’s lane a picket fence which an abutting owner had erected in front of his premises and which was located, as positively alleged in the petition, in the roadway of Cobb’s lane at about its middle' line. The village president denied any jurisdiction in the matter, and further alleged that he has no knowledge or information sufficient to form a belief as to * * * the full width of said lane, or that the picket fence referred to in the 7th paragraph of the petition herein is an encroachment upon said lane,” etc. His answering affidavit further sets up that there is some doubt as to the true boundaries of the lane in question. The street commissioner answered the- petition' by denying that any legal duty was imposed upon him under the circumstances. The learned court at Special Term refused to grant either a peremptory or an alternative writ of mandamus, for the reason, assigned in a brief memorandum, that the petitioner’s rights were not clear, and that, as an abutting owner on the land, she might proceed by action to abate the nuisance of the alleged encroachment on showing her private damage. From the order entered on this decision the petitioner-appeals.

According to the strict rule of pleading which prevails in mandamus proceedings, the denial by. the respondent, the village president, of any knowledge or information sufficient tb form a belief as to whether the picket fence in question was an encroachment upon Gobb’s lane is insufficient to put in issue the positive allegations to the contrary in the petition. (People ex rel. Kelly v. Common Council, 77 N. Y. 503 ; Matter of Elder v. Bingham, 118 App. Div. 25 ; People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., 168 N. Y. 187.)

This being so, we have a situation where, according to the record, a public highway is encroached upon to its middle line by a picket fence erected by a private owner. This condition constitutes a^publie nuisance, and the duty to abate it rests upon some public officials of the village. The president of- the village denies it rests upon him. Section 141 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64) provides that the streets and public grounds of a village are under the exclusive control and supervision of the board of trustees of the village. Section 90 of the same act gives the board of trustees power to enact ordinances on various subjects, and more particularly as follows : “ To regulate or prevent incumbering the streets or public grounds with any material whatever, or any encroachment or projection in, over, or upon any of tho streets or public grounds, or any excavations immediately adjacent thereto.”

In pursuance of this power, the trustees eziacted ordinances, of which section 13 is as follows: “ Ho pez-son shall erect any piazza, steps, fence, or obstruction of any kind within the line of aziy street or sidewalk izi said Village, under a penalty of ten dollars, and five dollars for each additional day said obstruction shall reznain after notice to reznove same, fj'om the President of trustees.”

Section 53 of the same ordinances forbids any owner or occupant of a lot or teneznent to “ cause or permit any 2>ublic nuisance to be, or to remain in such tenement or upon such lot, or between the same and the centz'e of the adjoining street,” and directs the ¡zresident of the village to forthwith serve a notice upon the owner or occupant tó abate the nuisance, and provides a penalty for noncompliance on the 2>art of the occupant. Section 54 of the ordinances 23rovides that in case the owner or occu23ant fails to comply with the notice served under section 53, the said nuisance may be abated by the street commissioner of said Village at the expense of such owner or occupant.”

Among the duties cast upon the president of the village by section 80 of the Village Law there is a specification as follows: It is his duty to see that the provisions of this chapter, and the resolutions and ordinances of the board of trustees, are enforced, to cause all offenses created thereby to be prosecuted,” etc.

It is reasonably clear, therefore, that the duty of taking ste2>s to enforce the removal of encroachments from the public highways of the village of Tarrytown is a ministerial duty of the president of the village. Neither the ordinances, nor section 84 of the Village Law which defines the duties of the street commissioner, cast any duty upon that official'in regard to street encroachments or public; nuisances until the village president has acted.. The fact that the petitioner has a private interest in securing the removal of an encroachment' upon a public highway does- not deprive her of the right, as one of the public, of demanding the enforcement of the public right, nor would the fact that she had no private interest in any way interfere with her assertion of the public right. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390 ; People ex rel. Stephens v. Halsey, 37 id. 344, 348.)

On this record the petitioner has made out a case which iii the discretion of this court, entitles her to the issuance of a writ of mandamus, either peremptory or alternative, as the court may deem fit, against the respondent, the village president. As before indicated section 84 of the Village Law, which defines the duties of the street commissioner, casts no duty in the premises upon that officer, and so far as any duty is cast by the ordinances, it does .not arise until after action under the ordinances by the village president. As the village president had taken no action the street commissioner was not in default, and the motion for a mandamus was denied properly as to him. As to the respondent, the village president, a writ should issue.

The order appealed from, in so far as it denies the motion for a wr;t of mandamus against the village president reversed, with ten dollars costs and disbursements, and ordered that an alternative writ against him issue. The order, so far as it denies the motion against the stre.et commissioner is affirmed, with ten dollars costs and disbursements. ■

Hirschberg, P. J., Thomas and Rich, JJ., concurred; Woodward, J., read dissenting opinion.

Woodward, J. (dissenting):

I am unable to concur in the opinion of Mr. justice Carr. The rule in mandamus is that there must be a clear legal duty, involving no discretionary powers, and I fail-to find in the papers any clear legal duty on the part of either of the respondents in reference to the fence which it is claimed has been erected within the limits of Cobb’s lane. There appears to be a dispute as to the boundaries of this thoroughfare ; there is a dispute as to whether the fence is in fact in the highway and to compel the respondents or .either of them

to remove this alleged obstruction and to take upon themselves the responsibility of determining the correct boundary lines of the way is not within the legitimate province of the writ of mandamus. The streets'and public places of villages are within the jurisdiction and control of the board of trustees (Village Law [Consol. Laws, chap. 64;. Laws of 1909, chap. 64],.§ 141), not of the president, and the only provisions of the ordinances of the village of Tarrytown to which attention is directed are sections 13, 53 and 54. The last two sections obviously relate to matters involving the public health, and have no relation whatever to a common-law public nuisance, such as is here complained of, while section 13 merely declares that “ bio person shall erect any piazza, steps, fence or obstruction of any kind within the line of any street or sidewalk in said village, under a penalty .of ten dollars, and five dollars for each additional day said obstruction shall remain after notice to remove same, from the president of trustees.” The rule is well established that “ The only liability which attaches to the infraction of an ordinance is the penalty which it imposes ” (21 Am. & Eng.. Éncy. of Law [2d ed.], 1000), and section 13 of the ordinances of the village of Tarrytown does not, by implication, impose any other duty upon the president of the board of trustees than to give notice to those who may violate the ordinance to abate the obstruction as a condition precedent to the incurring of the penalty.' There is nothing in the ordinances, properly construed, which imposes any duty on the president of the board of trusteés to remove an obstruction from the highway ; his only duty, if there is an actual obstruction, is' to give notice, and then if the person obstructing the street persists he is liable to the penalty denounced against the act, but this involves no civil liability. (21 Am. & Eng. Ency. of Law [2d ed.], 1000.) It is conceded that there is no duty on the part of the street commissioner to act, and I am equally persuaded that there is nothing in the statutes or in the ordinances of the village which requires the president of the board of trustees to assume the burden of determining the boundaries of a highway, where they are in dispute, and to remove obstructions from the same. The questions here presented are too complex to cope within the scope of mandamus, either peremptory or alternative, and I agree with the court below that the controversy should be tried out between the parties who are directly interested.

Order, in so far as it denies the motion for a writ of mandamus against the village president, reversed, with ten- dollars costs and disbursements, and ordered that an alternative writ against him issue. The order, so far as it denies the motion against. the street commissioner, affirmed, with ten dollars costs and disbursements. .  