
    The City of New York, Respondent, v. John Watts de Peyster and Others, Defendants, Impleaded with Walter J. Salomon, Appellant.
    First Department,
    July 15, 1907.
    Municipal corporations — encroachment of area on city street — action-in equity to abate nuisance.
    'An open area way in the. city of jSTew York, extending into the street more than' five feet from the huilding line, contrary to.the municipal ordinance, is a .public nuisance. -
    Although the municipal ordinances provide a penalty for such encroachments upon the streets, and the city might have an action at law for the penalty,' a court of equity will entertain an action to compel the remó val'of the nuisance. Where there is an Obstruction o/encroachment of a permanent nature 'upon a public highway and particularly where it is of long standing and a ■ right to maintain it is asserted, a court of -equity will take jurisdiction.
    A permit, allowing a landowner to maintain a vault under the city street, will not be construed to authorize the construction of an open area encroaching upon the. street more than five feet-from the'building- line, and- such encroachment is á nuisance per se,which no lapse of time will deprive the public of the right to' abate. ’ ' ■
    ■ Appeal by the defendant,' Waltér J. Salomon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of. New Yorlc-on the 1st ..day of August, 1906, upon'the decision of the court rendered after a trial at the New York Special Term.
    
      William Allan Hoar, for the appellant.
    
      Theodore Connoly [George O'Reilly with him on the brief], for the respondent.
   Laughlin, J.:

This is an action by the city to restrain the continuance of a nuisance caused by an' encroachment upon the sidewalk of Forty-second street, at the northwest corner of Forty-second street and Sixth avenue in the borough of Manhattan, ¡N ew York, and for a mandatory injunction requiring the abatement thereof, and that the side-walk be restored by the defendants, and in the event of their failure so to do, that the nuisance may be abated and the sidewalk restored by the city at their expense.

The appellant is the lessee of the premises at the northwest corner of Forty-second street and Sixth avenue and of the appurtenances. In 1859 the premises were owned by the defendant De Peyster.. The.city-’s record of “Receipts "for Street Vaults” shows that permit FTo. 208 was issued to him “for the northwest corner of 42nd Street and Sixth Avenue, for 2872 superficial feet, February 22nd, 1859 ; ” and it was admitted on the trial that such permit was issued. At the time that' permit was issued there was an-open aréa along the Forty-second street front of the building then standing on the premises and a vault underneath the sidewalk with a stairway leading into the same through the open area. After this permit was issued the 'vault was reconstructed and enlarged, pursuant to the permit and “ arched or closed over at that time.” De Peyster testified that “ The vaults were closed and the pavement put on top of them. They remained in that condition some time. The area was subsequently changed. The area was on tlie south side of the building, you know; that is on the Forty-second street side of the building, arid the steps were there always.” The open arep. was enlarged after the permit was issued and there were two wide staircases leading down into the area. The width of the open area as then constructed 'has neither been shown with accuracy nor approximately. There was a grass plot over the vaults, which was in recent years removed, and the opening through the sidewalk was then greatly enlarged;' it was twenty feet six inches or the entire width of the building in length and thirteen and one-half feet in width, that is, projecting that distance from the building line into that part of the street appropriated for sidewalk purposes, and it has so remained and been maintained ever since. It was not shown that any other permit was granted.

At the -time'the permit -was granted in 1859 section 12 of chapter 31 of the Revised Ordinances of 1845, which was then- in force, provided as follows : “ Ro area in the front of any building in the City, of New York, shall extend more than, one-iifteenth part of the width of any street, nor in any case more than five feet, measuring from the inner wall of such area to the building.” In tile re-enactment of. the ordinances these provisions have been-preserved and are still in force. (Revised Ordinances of 1897, § 329 ; Cosby’s Code of Ordinances [Anno. 1907], 38, § 180.)

The -learned justice who presided at the .Special Term decided that the ■ area or opening in the sidewalk beybnd a line five feet from'the building line of the premises, has been unlawfully constructed and maintained and constitutes a public nuisance and should be removed and the sidewalk restored by defendants within sixty days, and upon their failure-to remove it and restore'the sidewalk within that period, that the same may be done by the plaintiff at the expense of the defendants.. The judgment follows -the decision, and it contains an appropriate provision for further proceedings to carry the same into effect. The defendants demurred to the complaint. Their demurrer was overruled and they appealed to this court from the interlocutory judgment. ' Upon that appeal their counsel argued'the same questions whibh are discussed'by the learned counsel for the appellant who is here alone oh the present appeal.

. We affirmed The interlocutory judgment- without, deeming it necessary to write' an opinion (91 App. Div. 6.12)

The principal contention of the appellant is that this is an attempt to enforce a city ordinance- by an- injunction, and that there being an adequate remedy at law for enforcing the ordinances by imposing penalties, a court of éqitity should not taire cognizance of the action. Ordinances have.been introduced in evidence showing that -this, encroachment was prohibited and imposing a penalty for the violation. Authority for the broad contention of counsel for appellant is found in some decisions of the courts., of this and sister States (Village of Brockport v. Johnston, 13 Abb. N. C. 468; Rozell v. Andrews, 103 N. Y. 150; Village of New Rochelle v. Lang, 75 Hun, 608; City of Mount Vernon v. Seeley, 74 App. Div. 50; Village of St. Johns v. McFarlan, 33 Mich. 72); but if the violation of law or ordinance constitute a public nuisance those authorities concede that equity has jurisdiction and the failure to 'exércise jurisdiction was owing to the fact that tlie. public official or municipal corporation ■ was without legislative authority to institute the action. It may be that the city could indirectly by ordinance and penalties for a violation thereof, compel the restoration of the sidewalk. This action, however, is not brought to enforce the ordinance but to compel the removal of the- encroachment upon and obstruction in the public highway and its restoration to public use, and the rule is that where there is an obstruction or encroachment of a permanent nature upon a public highway and particularly where it is of long standing and a right to maintain it. is asserted, a court of equity will entertain jurisdiction and that is the more orderly way for the municipality to proceed. (City of New York v. U. S. Trust Co., 116 App. Div. 349; City of New York v. Knickerbocker Trust Co., 52 Misc. Rep. 222; 104 App. Div. 223; Village of Oxford v. Willoughby, 181 N. Y. 160. See, also, People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; Gunning System v. City of Buffalo, 62 App. Div. 497; City of Buffalo v. D., L. & W. R. R. Co., 68 id. 488; Delaware, L. & W. R. R. Co. v. City of Buffalo, 4 id. 562.)

The appellant also contends that it has not been shown that the . sidewalk was removed and that the open area .is maintained without authority, and that, therefore, it is not a nuisance per se, and that there is no evidence to justify a finding that it is a nuisance in fact. It is quite clear that to the extent that the sidewalk is directed to.be restored by the judgment there never was any authority to • remove it or to make an open area therein. The vault is not to be closed nor is the owner’s rights under the permit granted in 1859 • and the ordinance as it then existed to ,be interfered with. The permit for the vault clearly contemplated an opening under but not through the sidewalk; and the ordinance at that time, in the light of which the permit is to be construed, expressly limited the opening to the space within five feet, of the building line. The opening beyond that distance was, therefore, unauthorized and constituted a ■nuisanceper se, and no lapse of time will deprive the public of their right to have an encroachment on a highway which does not extend to the full width and entirely cut off travel removed and the highway restored. (Driggs v. Phillips, 103 N. Y. 77; St. Vincent Orphan Asylum v. City of Troy, 76 id. 113; City of Buffalo v. D., L. & W. R. R. Co., supra.) As it - has not been shown that the city at any time,possessed authority to permit such an encroach-; meat upon the public street it may not be inferred by lapse of time that a. permit therefor was issued, and if issued it would be void. (Ackerman v. True, 175 N. Y. 353.) Although, the right of' the city seems clear to have this nuisance abated and. the sidewalk restored for public travel, yet the propriety of the city’s resorting to equity instead of summarily abating the nuisance; is emphasized by the fact that shops have been constructed and are in use-in the street under the sidewalk and opening into- this areaw.ay, and the city-if it proceeded summarily would not only have taken the risk of deciding that the open areaway and obstructions constituted a public nuisance but it would be under, obligation to avoid injury to and care for the private property found in the stores and might injure some of the- occupants.

It follows that the judgment should .be- affirmed, with costs.

Patterson, P. j.,. McLaughlin, Houghton and Lambert, JJ., concurred. - ,

■ Judgment affirmed, with costs. .  