
    The Metropolitan Exhibition Company, App’lt, v. John Newton, as Commissioner, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Streets—When legally opened—New York (city of).
    Where land is legally taken by the corporation for a public street, the street is said to be opened although not regulated or graded, and the right to the use of the street for public purposes becomes vested in the city.
    2. Same—Control of.
    The corporation after acquiring title, has the right to control its possession and prevent interference by individuals.
    3. Same—Power of common council over.
    The power of the common council extends only to the regulation and use of public streets.
    4. Same—Obstructions—Who may Remove.
    Where the department of public parks has the right to regulate obstructions in streets, it has the right to cause them to be removed by any agent it may select.
    Appeal from order denying motion for an injunction re-restraining the defendants from removing, or in any way interfering with a certain fence alleged to belong to- the plaintiff in One Hundred and Eleventh street between Fifth and Sixth avenues.
    
      J. B. Drew, for app’lt; D. J. Dean, for resp’t.
   Van Brunt, P J.

It may not be at all necessary to add anything to the opinion of Mr. Justice Ingraham, who decided this motion below as he has stated with great distinctness the grounds upon which his decision was founded. But as some points seem to have been made upon the part of the appellant as to the power conferred upon the department of public parks, and also upon the commissioner of public works in reference to street obstructions, it may be necessary to add a word or two to that which has been said his opinion by the learned justice below.

The grounds upon which the appellant proceeds are, first, that the land designated on the map as One Hundred and Eleventh street is in no sense of the word a street; and that because neither the department of public parks, nor the department of public works have any authority to grade One Hundred and Eleventh street, they have no jurisdiction over the same. That as the department of public parks has jurisdiction of this street only after the same is opened, because the street has not been regulated and graded and open to public traffic, therefore it has no authority over the same.

We think that the error into which the appellants have fallen arises largely from a misconstruction of the words, 'l after the same are opened,” relating to the public streets. In all legislation affecting the public streets the opening of a street has nothing to do with regulating and grading or opening the same to public traffic, but such term is used to apply to the taking of the land by the corporation for a public street, and when such land is taken by the process recognized by the law, the street is said to be opened, whether it is regulated and graded or not.

There is no dispute but that the street, as far as the' premises in question are concerned, has been taken and paid for by the city, and, therefore, opened in the sense in which this word “ opened” has been used in all the statutes relating to the public streets; and when jurisdiction was conferred upon the department of public parks as to all the streets and avenues adjacent to the parks after the same had been opened, such jurisdiction accrued the moment these proceedings were complete and the right to the use of the street for public purposes became vested in the city.

The argument that the city holds the title of this street in trust, that the same be appropriated and kept open as a public street, avenue, square or place forever in like manner as the other public streets, etc., in said city are and of right ought to be, and that, therefore, the appellant has a right to keep possession of the same, does not seem to have any foundation in any legal principle. The corporation has the right at any time or times thereafter, i. e. after it has acquired title to the same, to take possession thereof, and as the custody and control of this street was vested in the department of public parks after the same was opened, it seems clear that the officers of the city have a right to control its possession and to prevent its being interfered with by private individuals.

As has been said by the learned justice below, nothing can be claimed because of the resolution of the common council, because the common council have no power to appropriate any portion of any street to private use to the exclusion of the public therefrom.

The only power that the common council have is to regulate public traffic and sales in the streets, highways, roads and public places; to regulate the use of the streets, etc., by passengers, animals, vehicles, cars and locomotives; to regulate and prevent the building of building fronts and house fronts within the stoop lines; to prevent encroachments on and obstructions to the streets, etc., not including public parks and to authorize and require the commissioner of public works to remove the same.

It seems to be plain, therefore, that the resolution upon which the appellant relies in establishing his right to use One Hundred and Eleventh street in the manner set forth in his papers is entirely without jurisdiction- and therefore void.

The objection urged that even if the department of public parks has jurisdiction over this portion of One Hundred and Eleventh street, it cannot delegate it to the commissioner of public works as they have attempted to do in this case, is certainly not well taken. If the department of public parks have a right to remove these obstructions it has a right to choose any agent they may see fit; and if it employed the commissioner of public works to perform the duty thus devolving upon it, and for the execution of which it has to employ some other persons, the person proceeded against cannot say that the commissioners of public parks must with their own hands go upon the ground and execute its own orders. The mere fact that the commissioner is an officer of the city having the facilities for carrying out this direction of the department. of parks in no way detracts from the efficiency of the agency which it has employed for the purpose of carrying out its resolutions; and the party proceeded against as has already been said cannot complain because the department of public parks have selected efficient agents for the purpose of executing its orders.

It is therefore entirely immaterial as far as this motion is concerned whether the street in question is under the control of the department of public parks or of the commissioner of public works; -because the latter has the duty imposed upon him, of removing obstructions, and if under his jurisdiction he has the right to go on and remove the same. And the department of public parks have the right to regulate the obstructions in streets under its jurisdiction and where unauthorized obstructions are found upon those streets it has a right to cause them to be removed by any agent it may select.

The order, therefore, seems to have been properly made and it should be affirmed, with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.  