
    John T. Williams, Respondent, v. Robert M. Silverman Realty and Construction Company, Appellant.
    First Department,
    March 9, 1906.
    Injunction— landowner restrained from, encroaching on street by windows and portico — restrictive covenant by landowners to set back building line — municipal corporations — municipal authorities of city of Mew York without power to license permanent encroachments 'on public streets.
    Although the title to the streets in the city of Mew York is in the municipality it is held in trust for public use, and the board of aldermen and the park commissioners of said city have no power to grant licenses to private landowners to encroach upon the street line by bay windows, etc.
    Hence, when the predecessors in title of adjoining owners have entered into a restrictive covenant or “ set-back agreement” as to lands facing a park, which covenant by its-terms runs with the land, and which provides that said owners shall forever keep the sidewalks on their land unincumbered, and that the building line shall be set back ten feet from the line-laid out by the municipality, and that no owner shall build anyrstructure other than such as is permitted by the law to be built between what is known as the exterior house line and the exterior area or stoop line, etc., an owner will be restrained pendente lite from erecting bay windows and a portico extending three feet out from said set-back line, although a license therefor has been obtained from the municipal authorities.
    But the removal of portions of such encroaehing structures already built should not be compelled by temporary injunction, but should be left for the final decree.
    Patterson, J., dissented.
    Appeal Ijy the defendant, the Robert M- Silverman Realty and Construction Company, from an order of the Supreme Court, made at the blew York Special Term and entered i-n the office of the clerk of the county of ¡New York on the 14th day of December, 1905, granting an injunction pendente lite.
    
    _ ^John W. Weed [Charles Meyers with him on the brief], and Weed, Henry <& Meyers, for the appellant.
    
      Richard T. Greene, for the respondent.
   Clarke, J.:

The plaintiff and defendant are owers of the entire front of a block on the west side of Morningside avenue, West, in the city of New. Yorkj running from the northwest corner of One Hundred and Seventeenth street to the southwest corner of One Hundred and Eighteenth street. ' The plaintiff owns from One Hundred and Eighteenth street running south 100 feet 11 inches, and the defendant owns from that point south 100 feet 11 inches to One Hundred ¡and Seventeenth street. The plots are both located within 350 feet of Morningside. Park, and hence, for certain purposes, are within the jurisdiction of the park department. (See Greater N. Y. charter [Laws of 1901, chap, 466], § 612, as amd. b,y Laws of 1901, chap. 723.) The defendant’s, premises aré 120 feet deep and the plaintiff’s premises are 125 feet deep. The plaintiff’s preniises are vacant. The defendant’s premises new have thereon in course'of construction a building covering in width the 100 feet 11 inches on the west side -of Morningside avenue, West, with a depth of 100 feet, the intended structure being a six-story high-class elevator apartment, house. On the 3d day of June, 1890, certain owners of property in that locality, for valuable consideration,' for themselves, their heirs, successors and assigns, executed and delivered an instrument under seal, called ’ a set back agreement.” Among, those who executed said agreement were former grantors of both the plaintiff and- the defendant. The said agreement recited:' '

Whereas, the Department of Public Parks in said City propose that the whole of the Westerly'sidewalk of said Morningside Avenue between One hundred and Tenth Street and said Amsterdam Avepue, late Tenth Avenue, being fifteen feet in width as now laid out, shall forever hereafter be kept unencumbered from buildings and open‘and free for public use and ornamentations, and the 'under-; signed as such owners are willing to co-operate in. carrying out such improvement,” those- signing covenanted that- thereafter the line parallel with the Westerly side of said Morningside Avenue, as now laid out and. distant 10 feet Westerly therefrom between said 110th Street and said Amsterdam Avenue, late l:0th Avenue, shall constitute the exterior building.-, line of all buildings or structures to he erected oi* constructed upon said land of said respective parties, and that the Westerly side of Morningside Avenue as now laid out shall • constitute "the exteripr area or stoop line of all such buildings and structures. And also that neither "said parties- wjio shall sign and execute this' agreement, their respective heirs, successors and assigns, nor any of them, shall or will at any time hereafter, build or erect or cause or suffer to be built or erected upon any of said land owned by them respectively within 10' feet- of the Westerly line of said Morningside Avenue as laid out between said 110th Street and said Amsterdam Avenue, late 10th Avenue, any building or structure other than such as now is or hereafter may be permitted by law to be built-or erected in said City between what is known as the exterior building or house line and the exterior area or stoop line. And also that the said parties who shall sign and execute this agreement, shall and will consent to the adoption by the Board of Aldermen of said City of an ordinance proper or necessary to carry this agreement into effect, and also that any such party or the heirs, successors, or assigns, of any such party shall be entitled as a matter of right to an injunction order, or decree from any Court having jurisdiction in the premises, to restrain any other party hereto, or the heirs, successors or assigns, of any such party from the violation of this agreement.”

The purpose of this covenant is plain. The sidewalk was to be widened ten feet, this set-back line was to take the place and stead of the building line established by the city, and beyond this set-back line nothing was to be built or erected other than such as was permitted by law to be built between the exterior building or house line, and the exterior area or stoop line. This is an action for an injunction to prevent the erection proposed by the defendant beyond that set-back line. If the proposed structure would be lawful if the setback line was, in fact, the building line established by the city, the action will not lie. If under such circumstances it would be unlawful, the action is well brought. The complaint alleges — and there is no dispute of fact in the case: “ That the main front line of the said building, except the projections herein described, does not extend beyond the set-back line mentioned in the aforesaid agreement. That, beginning at point on said set-back line distant respectively fourteen (14) feet ten (10) inches and fifty-one (51) feet ten (10) inches northerly from the intersection of said set-back line and the northerly side of West 117th Street, defendant has commenced the erection of two several projections in front of said building. The said projections consist of permanent stone and masonry walls, after the ordinary pattern or form of .a bay window, said structure resting upon and being supported by the ground, and ' extending in front and to the east of said set-baclc line, from two (2) feet nine and one-hálí (9-J) inches to two (2) feet eleven (11) inches, and encumbering the space in front of said set-back line by such buildings, so as to prevent open and free public use: thereof and access to the same, and the defendant is. also about to erect or cause to be erected a p.ortico having the width of fifteen (15) feet and extending eleven (11) feet eight (8) inches above the sidewalk level and extending easterly beyond the set-back line a distance o;f three (3) feet four (4) inches, the same being supported by two columns and two pilasters.”

The defendant concedes that these so-called bay wiiidows-are part óf the permanent front of the building; that they are built of masonry and extend from the foundation to the roof;. that one of them has a frontage of eighteen feet eight inches, and the other .nineteen feet three inches. Their walls are part of tile walls of the front of the building, of the same material and the same^construction, and the same thickness-, as solid, substantial and permanent. ■ In' short, thirty-seven feet eleven inches of the said front wall of this building is built about three feet, beyond the building line in the street, while the rest of it is built on the "line. The defendant concedes the fact and claims that such construction is lawful.It claims that section 4 of general ordinance 1303 of the board of aldermen, in-force on May 1, 1904, which provides that “ Bay windows may be hereafter erected with a projection of not more than three feet beyond the building line, provided that, when the projection exceeds one foot beyond the building line the total number of feet'in width occupied by all the bay windows on the same frontage óf the same building shall not'exceed seventy-five per cent of the. width of. the frontage of the building,” and the provisions mf section 1 of said ordinance, * * the park commissioners *' *.. * shall issue . permits for -the erection of bay windows projecting beyond the "building, line provided in the opinion of the • officer having jurisdiction no injury will come to the public thereby. * * * Bor the purposes of this ordinance a £bay window’shall be taken to mean and include all projections on the face of the building in the nature-of windows, such as are commonly called bay windows, show windows, oriel windows and bow windows, without regard to the material of which they are constructed or to the purposes for which they are to be used,” furnish the required authority.

These permits are revocable. Notwithstanding the able brief of counsel, it, seems to me that this is no longer an open question. The facts are on all fours with Ackerman v. True (175 N. Y. 353), decided by a unanimous court. In that case, the house which the defendant built upon the lot adjoining the plaintiff’s was extended three feet six inches beyond the easterly line of the street and had in addition what is known as a swell front or bay window also extending into Riverside drive. Judge Mabtin said: The only remaining question that need be considered is whether the permit issued to the defendant by one of the commissioners of parks was legal and sufficient to justify him in erecting and maintaining the building in question upon a portion of the street, so that it constituted neither a public nor a private nuisance as to the plaintiff who suffered special damages by reason thereof. We think it was not. We have been referred to various statutes relating to this subject, upon which the defendant relies to sustain that contention, and from which he urges that the commissioners of parks are invested with power to permit such encroachments and erections as they shall see fit upon certain streets, of which Riverside drive is one. These statutes we have carefully examined without finding any. such authority conferred upon the park board, or upon any member thereof, as would'justify their granting to the owners of property abutting upon the line of such a street a permit or right to extend the main wall of a permanent and substantial structure three feet and six inches into and beyond the line of the street. * * * Any such construction of that statute would result in practically annulling that portion of the charter of Greater New York which provides that streets and other public places in the city shall be inalienable. (§ 71.) Although it is true that the title of the streets in the city of New York is in the municipality, that title is held by it in trust for public use, and not even the municipal assembly has authority, to permit permanent encroachments thereon. While that body may, by ordinance, regulate the use of streets, highways, roads, public places and sidewalks, and prevent encroachments Upon and obstructions to the- same, the charter expressly provides that ‘ 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.’ ” After considering the power given to the park commissioners under the revised charter of 1901, the court proceeded: “ When, however, that provision is considered in connection with the other provisions of the charter relating to the inalienability of the streets, and depriving even the municipal assembly of any power to authorize the erection or continuance of any encroachment, upon the streets, it becomes ■ c[uite, manifest, we. think, that the Legislature did not intend thereby to confer upon a member of the park board the right to permit an abutting owner Upon any of the streets of the city, whether within any park or outside, to encroach upon the street by the erection of permanent and substantial structures thereon.”

The structure in the casé at bar is both permanent and substantial. - “ Moreover/’ said the court, “ if tha't statute were to be thus construed, its Constitutionality would be at least dotibtf.nl/ for even ■ the Lbgislature cannot authorize the condemnation of private property for other than public uses.”

In McMillan v. Klaw & Erlanger Co. (107 App. Div. 407) the action was brought by .a property owner to restrain the defendant as owner of the adjacent lot from erecting as a part of its building thereon a structure about forty-five feet in height and extending into the street four feet beyond the building line. The defendant set up-as a defense an Ordinance, passed by the board of aldermen of, fhe city of New York, which it was claimed' sanctioned and legalized the Structure complained of. This court held : “No municipal or legislative enactment can justify or sanction such an invasion- of the rights of private property guaranteed to the citizen by both State aiid Federal -Constitutions, and, therefore, the -ordinance set up in the answer is no defense to the plaintiff’s cause of action.” There is nothing to be added to Mr. Justice O’Brien’s careful examination of the subject in that case. Whatever cases may be in the books which tend to support a different rule must be held to be overruled by the Ackerman and the McMillan cases — until, at least,, the Court of Appeals has again passed upon' the question.

It may perhaps be relevant to point out that Presiding Justice Van Brunt, in a dissenting memorandum in Broadbelt v. Loew (15 App. Div. 343), accurately foretold the event. He said: “ Such a rule would enable the common council to authorize the extension of all buildings into the street.” By the ordinance of May 21, 1895, it was provided that show or bow windows not starting from the ground and not extending above the first story and not projecting more than twelve inches from the front wall might be erected. By the general ordinance of June 25, 1903, it was provided that property owners could be licensed to erect bay windows with a projection of not more than three feet beyond the building line, but required the consent in writing of adjacent owners. By the ordinance of June 25, 1903, however, they provided- that a permit for the continuance of an existing bay window might be obtained without consent of adjoining property owners. We have seen the kind of special ordinance the board passed in the McMillan case. In the case at bar the solid structure from the foundation to the roof is claimed to be a bay window permissible under a revocable license. If the board has the power to authorize such a structure projecting three feet into the street why not six or ten ? There is no such power.

But the injunction goes too far. The mandatory portions thereof requiring the taking down of that portion of the structure already in place ought not to be in an injunction pendente lite. That is the final remedy sought in the suit and should await final judgment.

The order should be modified by striking out the provisions requiring the removal of so much of the projections as have been constructed, and as so modified affirmed, without costs.

O’Brien, P. J., Ingraham and Laughlin, JJ., concurred; Patterson, J., dissented.

Order modified as directed in opinion, and as so modified affirmed, without costs. Settle order on notice.' 
      
      See Laws of 1897, chap. 378, § 71, as amd. by Laws of 1901, chap. 466.— [Rep.
     
      
       See Laws of 1897, chap. 878, § 49, subd. 8, revised in Laws of 1901, chap. 466, § 50, as amd. by Laws of 1905, chap, 629. The board of aldermen now possesses the power of the municipal assembly.— [Rep.
     
      
      See Laws of 1901, chap. 466, §612, as amd. by Laws of 1901, chap. 723;—[Rep.
     