
    EMMA A. PORTH, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.
    
      Issues, as to what falls within—Wooden elevated railroad stations in the streets, when unauthorized.—Public nuisance, an unauthorized erection in the streets is—Abatement of public nuisance by injunction at the suit of an individual.
    
    The complaint set forth (among other things) in the eighth paragraph, that defendants wrongfully and without legal authority entered upon Second avenue in front of plaintiff’s premises for the purpose of constructing thereon an elevated railway and did construct thereon an elevated railway. It then alleged:
    “ IX.—That thereafter, in or about the month of October, 1881, the said defendant again entered upon the said Second avenue, in front of the plaintiff’s premises aforesaid, and erected thereon an elevated station building between the easterly and the westerly tracks of said railroad structure, which building, with its platform and stairways, extends from a point opposite No. 1433 Second avenue northerly across Seventy-fifth street, immediately in front of plaintiff’s said apartment dwelling-house, about on a level with the top of the windows of the first apartment floor thereof. That the said station building and platform is a wooden shed with a floor of boards fitting closely together, which floor is on a level about twenty-five feet above the level of the street below, with a tin-covered roof rising about twelve feet from the level of the floor. That from about the middle of the said station building a wooden stairwáy descends to the sidewalk on the westerly side of said ^Second avenue, occupying a space about four feet in width of such sidewalk.
    “ X.—That the stairway aforesaid is constructed in front of plaintiff’s said premises in such a manner that persons ascending to the said station and descending therefrom look directly into the windows of the first-floor apartment of plaintiff’s said building, and otherwise cause annoyance and discomfort to .the tenants of said building; that twice in each day dust a,nd dirt are swept from such platform and stairway, and-enter upon and into said premises; and that until recently the light and air of said premises ' was further obstructed by large signs fastened to the railings of said platform and stairway.
    “ XII.—That by the construction and maintenance of the said elevated railway structure, and by the operation thereof, and particularly by the construction and maintenance of the elevated station, platform and stairway hereinbefore described, the defendants have unlawfully appropriated, impaired, abridged, and otherwise interfered with plaintiff’s rights and easements in said Second avenue, and particularly have greatly interrupted and intercepted the air and light of the building on plaintiff’s said premises, and the convenient access thereto, and have caused noise, stench, cinders, smoke, dust, ashes, steam and noxious gases to enter into and upon said building, and have otherwise interfered with the privacy and convenience thereof, and the uses to which the said building is best adapted.
    “XIII.—That each and every of the aforesaid injurious acts has been and is now done wrongfully, and against the will and without the consent of the plaintiff herein.”
    The answer denied all the above allegations contained in the ninth, tenth and thirteenth paragraphs; also denied that defendants wrongfully and without legal authority entered upon Second avenue as alleged in the eighth paragraph of the complaint, and alleged that by virtue of Acts of the Legislature of the state of New York, to wit, chapter 606 of the Laws of 1875, chapter 885 of the Laws of 1872, chapter 837 of the Laws of 1873, chapter 275 of the Laws of 1874, and the acts amendatory thereof and supplemental thereto, and by virtue of the authority and consent of the state of New York and of the corporation of the city of New York granted to and conferred upon the defendants, as aforesaid, these defendants were and are duly authorized to build the foundations, superstructures and all other structures built by them, or either of them, and described in the complaint herein.
    Evidence to the effect that plaintiff had suffered special damages by construction of the station was given.
    Held,—That the pleadings raised the issues as to whether the station was constructed as alleged in the complaint, and, if so, as to whether it was so constructed without authority of law and by reason thereof a public nuisance. That the structure being of wood the defendants had no authority to construct it under any of the statutes relating to elevated railroads; and it was a public nuisance. Tliat being a public nuisance a Court of Equity had power to abate it by injunction at the suit of an individual who sustained thereby a special damage different from that sustained by the general public. That the plaintiff had suffered such special damage.
    Before Freedman and Ingraham, JJ.
    
      Decided November 3, 1890.
    Appeal from judgment entered upon the findings of the court on a trial by the court without a jury.
    The facts sufficiently appear in the head-notes and the opinion.
    
      
      Davies & Rap alio, attorneys and of counsel, for ap pellants, on the questions considered in the opinion and the results arrived at therefrom argued :—
    I. The learned trial court erred in granting an absolute injunction against the maintenence and use of the station. It has been held by this court that the practice of allowing the defendants in an action of this character to avoid the operation of a judgment of injunction by the payment to the plaintiff ’of a sum of money fixed by the court as the value of the plaintiff’s easements, is not a matter of right on the defendants’ part, but rests in the discretion of the court. Eno v. Metropolitan Elevated R. Co., 56 N. Y. Super. Ct., 313 ; Carter v. N. Y. Elevated R. Co., 28 N. Y. St. Rep. 381. This discretion has, however, been exercised in a substantially uniform manner, and this form of judgment has become well recognized as the fairest and most convenient method of adjusting the rights of the parties and reconciling them with the rights of the public. Henderson v. N. Y. Central R. Co., 78 N. Y. 423 ; N. Y. Natl. Exch. Bank v. Met. El. R. Co., 53 N. Y. Super. Ct., 511.; Kearney v. Met. El. R. Co., 14 N. Y. St. Rep. 854 ; Pond v. Met. El. R. Co., 112 N. Y. 186 ; N. Y. El. R. Co. v. Fifth Natl. Bank (U. S. Supreme Court, May 5th, 1890). This course was adopted by the trial court in the case at bar with respect to the tracks and main structure of the railroad. The failure to make such a provision with respect to the station appears from the proceedings on the trial to be due to the claim on the part of plaintiff and the conlusion on the part of the trial judge that the plaintiff had a right to proceed against the station as a public nuisance by reason of the fact that it was not constructed of the material required by the specifications of the rapid transit commissioners. That the learned trial court erred in awarding an absolute injunction on this ground appears, we submit, from the following considerations “ (1) The complaint did not ask for relief on the ground of any violation of the rapid transit commissioners’ requirements, but solely for interference with plaintiff’s private property.” The defendants were not prepared to try such an issue and they protested against its introduction into the case as is above shown. Under the pleadings, as they now stand in the judgment roll, no such issue arose. The principle of law involved is familiar, and a single citation will suffice to show the importance which is attributed to it by the Court of Appeals. Southwick v. First Nat. Bank of Memphis 84 N. Y. 420. “ (2) The requirement as to the material of which the station was to be constructed was not imposed for the benefit of the plaintiff, nor has the plaintiff suffered any special damage by the violation of it.” It was held by Chancellor Kent in a celebrated case that an injunction would not be granted to prevent the violation of a purely public duty. Attorney-General v. Utica Ins. Co., 2 Johns Ch. 371. We believe it to be well settled that in order to the enforcement in an action by a private individual of any requirement of law or statutory duty, it is necessary to prove two things : (a) that the requirement was made or the duty imposed for the benefit of the person complaining ; and (6) that the person complaining has suffered a special injury through the violation of the requirement or statutory duty. Neither of these elements has been found to exist in the case at bar, and there is no evidence which would support such a finding if it were made. There is, and was at the time of the erection of the structure a general law applicable to all buildings within the city of New York, forbidding the erection of wooden structures. Laws of 1871, ch. 625, § 24 ; Consolidation Act, § 495. This requirement exists for the purpose of guarding against fire. The execution of the law is intrusted to the fire commissioners, and the power to make exceptions to the rule is also intrusted to them. Laws of 1871, ch. 25, §§ 24, 31 ; Consolidation Act, §§ 495, 501. When this general requirement was extended by the commissioners to the stations of the proposed railway it is absurd to suppose that they had any other object in view than that which called into existence the original law, viz., to guard against fire. There is another.and equally fatal objection to this theory of the plaintiff’s action and that is that the plaintiff suffers no special damage by reason of the material of which the station is composed. The disadvantages of the station are enumerated at great length by the plaintiff’s witnesses, and every one of them would certainly result as well from an iron station as from a wooden one. The special damages found by the court to result from the station are the obstruction of access to the store by the stairway ; that light and air are intercepted by the station; that it cuts off the view of the property from Second avenue ; that dust and dirt are swept from the station in such a manner as to enter the premises in question ; that the sidewalk has been cracked by the weight of the stairway ; that the privacy of the first floor of the premises in question is interfered with by persons looking in from the stairway of the station. These are substantially all the disadvantages mentioned by the witnesses. It is apparent that none of these disadvantages arises in the least degree from the material of which the station was constructed. Therefore, because the plaintiff was not especially injured by the violation of the requirement we submit that the court erred in permitting her to use it as a pretext for obtaining an injunction ' against the station as a public nuisance. The propositions of law upon which the above argument is based are abundantly sustained by authority. Gorris v. Scott, L.R., 9 Exch. 125 ; Atkinson v. Newcastle Waterworks Co., L. R., 2 Ex. D. 441 ; Strong v. Campbell, 11 Barb. 135 ; Taylor v. L. S. &. M. S. R. Co., 45 Mich. 74 ; Eames v. Salem, &c., R. Co., 98 Mass. 560 ; McDonald v. Pittsfield, &c., R. Co., 115 lb. ; Phila., &c., R. Co. v. Steffing, 62 Md. 504 ; Hayes v. Mich. Central R. Co., 111 U. S. 228 ; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 ; Doolittle v. Supervisors, 18 lb. 155 ; Lansing v. Smith, 8 Cow. 146 ; Dougherty v. Bunting, 1 Sandf. S. C. 1. “ (3.) The Metropolitan Elevated Railway Company had authority under its original charter to construct and maintain the station in question.” Chapter 885 of the Laws of 1872, which constitutes the original charter of the Metropolitan Company, prescribed the character of the railway proper as a tubular way according to Gilbert’s improved plan, but left the character of the stations entirely to the discretion of the railway company. Section 2 of the Act merely says : “ The corporation may make the necessary depots along the route, &c.” Chapter 606 of the Laws of 1875, did provide for a change in the character of the railway proper, through the instrumentality of the rapid transit commissioners, but this was a mere model change and not the creation' of a new franchise and it was on that ground that the constitutionality of the act was upheld. Matter of Gilbert Elevated R. Co., 70 N. Y. 311. The original franchise still continues and all the condemnation proceedings of the Metropolitan company as the successor of the Gilbert Company are still taken under the original charter contained in the Acts of 1872, 1873 and 1874. Under that charter no conditions were imposed as to the material of which the stations should be constructed. It does not appear that any such condition has since been imposed upon the Metropolitan Company by authority of law. The finding of the learned trial judge is that the Gilbert Company in order to secure the laying out of route by the rapid transit commissioners, coincident with its original route, “ engaged to submit to such conditions and requirements in respect to structure or otherwise as might be imposed by the said board of commissioners.” If the Metropolitan Company has in any manner broken this engagement the effect can be no more than to invalidate whatever rights it may have obtained under the contract of which the agreement formed part. The engagement cannot be given the force of an express statute, and the breach cannot turn into a public nuisance a structure which has express authority of law for its construction and existence. As one of the defendants, therefore, had legal authority to construct and maintain the station, the conclusions of law of the learned trial judge are clearly erroneous.
    II. The learned trial judge should in any event have left the defendant’s right to maintain the station to be determined in a condemnation proceeding.
    
      James B. Ludlow, attorney and of counsel, and Lewis L. Delafield of counsel, for respondent, argued, on the questions considered in the opinion:—
    I. The construction and maintenance of the wooden station and stairway complained of are unauthorized by law. Such station and stairway are a common nuisance. As regards the plaintiff, their continued maintenance is a continuing trespass. It may perhaps be conceded that under its original charter the Gilbert Company was authorized to construct wooden stations. It is undoubtedly true that it was possessed of a certain route, and that upon this route it was authorized to construct an elevated railway above the middle of the streets, supported by columns in the curb lines of the streets. It had no authority, however, to erect any other form of structure. This was the situation at the time of the passage of the Rapid Transit Act (ch. 606, Laws 1875). Section 36 of this act provides that ‘6 whenever the route or routes determined upon by the said commissioners coincide with the route or routes covered by the charter of an existing corporation * * * such corporation shall have the like power to construct and operate such railway or railways, upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation especially formed under this act.” When, therefore, the commissioners appointed under the act located a route coinciding with the original route of the Gilbert Railway, the effect upon that corporation was twofold : (1.) It prohibited the company from erecting a railway upon its route except in accordance with such requirements as might be imposed by the rapid transit commissioners, thus restricting its charter powers ; and (2.) It conferred upon the company the rights of a “corporation specially formed under this act,” namely, the right to construct any form of railway “in accordance with the plan adopted by said commissioners,” (§ 26, subd. 5), subject, however, to the obligation of the company to fulfill the requirements and conditions imposed by the commissioners. The company availed itself of this right by building a railway supported by columns resting in the roadway of the streets, which it had no power to do under its original charter. But the important point is that the conditions and requirements imposed upon the company by the rapid transit commissioners had the force of law, and modified the powers conferred by its original charter. Applying the rules laid down in Gilbert Elevated R. R. Co. v. Anderson, 3 Abb. N. C. 434, and Brooklyn Steam Trans. Co. v. Brooklyn, 78 N.Y. 534, to the case at bar it will be found that the Gilbert Company was divested by the resolution passed by the rapid transit commissioners on October 4, 1875, of all authority which it may have possessed under its original charter to construct wooden stations and stairways, and that its rights and powers were thereby limited to the construction of iron stations and stairways as prescribed by such resolution. Hence it follows that the Metropolitan Company was wholly without authority to construct the station and wooden stairway complained of, and that the construction and continued maintenance of such wooden station and stairway, being without authority, is a common nuisance.
    II. Although the station and stairway complained of are a public nuisance, their maintenance can be enjoined in this suit. It is a perfectly well-established principle that equity will grant relief against, a public nuisance at the suit of a private individual where the bill alleges and the proof establishes, that the injury suffered by the suitor is greater in degree or of a different kind than that suffered by the public at large. This principal is so generally recognized, and has been so frequently applied, that the citation of authorities upon this point would be a work of supererogation. Equity will relieve against a common nuisance, at the suit of a private individual, when it is alleged and proved that the plaintiff is damaged thereby to a greater degree or in a different manner, than the community at large. Francis v. Shoellkoff, 53 N. Y. 152 ; Milhau v. Sharp, 23 lb. 611, at 625 ; Doolittle v. Supervisors, 18 lb. 160; Morgan v. Binghamton, 82 Hun, 604 ; Hardy v. Brooklyn, 7 Abb. N. C. 403.
   By the Court.—Ingraham, J.

We are of the opinion that the facts alleged in the complaint were sufficient to authorize the relief granted by the court in this action.

The complaint alleged, that the defendants, in the years 1879 and 1880, wrongfully and without legal authority entered upon Second avenue and constructed an elevated railway, and that thereafter and about the month of October, 1881, the defendants again entered upon Second avenue and erected an elevated station building of wood with a' wooden stairway descending to the sidewalk of Second avenue.

This structure is alleged to be an unlawful appropriation of plaintiff’s property ; and a part of the relief demanded is that the defendants be compelled to take down and remove the elevated railroad structure and station building on Second avenue.

The defendants in their answer allege that they erected the elevated railway structure under authority of the laws of the state of New York, with the consent of the city of New York,-and that the said structure was constructed according to law.

The plaintiff thus alleged that the station of the defendants was unlawful ; the defendants deny that allegation and alleged that it was authorized by law, and it was this issue that the court found in favor of the plaintiff.

We are also satisfied that the defendants were not authorized to erect a wooden station in any of the streets of New York. The original authority given to the Gilbert Elevated Eailway Co. to build a railroad in Second avenue was never acted on by the company. No railroad was ever built under that charter. In 1875 the act called the Eapid Transit Act was passed. Under the provisions of that act the defendant, the Metropolitan Elevated Eailway Co. was authorized to construct in Second avenue a different structure from that authorized by the original charter, and it is upon the authority conferred by that act that the defendants entered upon Second avenue and built the railway structure now operated by them.

It cannot be claimed that the structure as built was authorized by the original charter, and the defendants must found their authority to build and maintain their railroad structure under the act of 1875, if it exists. It is clear that the defendants acquired no authority under that act to build wooden stations. The commissioners appointed under the act of 1875 authorized the defendants to build the structure of iron, and provided that the “ stairs and all parts of the stations, except the platform, doors, windows and inside sheathings, and except the tread of the stairs, shall be of iron. The structure as thus prescribed by the commissioners was expressly accepted by the defendants, and it was this structure and this structure only that defendants were authorized to build in Second avenue. When, therefore, the defendants built and maintained a station of wood in. Second avenue, a public street, they did what was unauthorized by law, and were guilty of maintaining a public nuisance.

It is well settled in this state that a court of equity will abate a public nuisance at the suit of an individual who sustains thereby special damage different from that sustained by the general public. Callanan v. Gilman, 107 N. Y. 370.

We think, therefore, that the judgment directing the removal of the unlawful structure was right. The other questions presented in this case have been settled by repeated decisions of this court adversely to the appellant. We think no error was committed on the trial, and that the judgment should be affirmed, with costs.

Freedman, J., concurred.  