
    The People of the State of New York ex rel. Charlotte Y. Ackerman, Appellant, v. Charles B. Stover and Others, as Commissioners of Parks of the City of New York, Constituting the Park Board, Respondents, for a Peremptory Writ of Mandamus.
    First Department,
    May 6, 1910.
    Municipal corporation—highway — encroachments — park hoard, city of New York.
    Municipal authorities having jurisdiction over streets and under a duty to pre- • vent and remove encroachments may he compelled to perform that duty by mandamus.
    Where the petition for a peremptory writ of mandamus directing the. park commissioners of New York city to abate a nuisance sets forth that the relator is the owner of certain premises; that said board suffered to he erected on the adjoining property buildings unlawfully encroaching on the highway; that the buildings are maintained with the consent of the board and in violation of its duty, and that the encroachments obstruct the public travel and injure the relators property and it further appears that relator has attempted to compel the owner of the property upon which the obstructions were erected to remove the same; that they have been declared both a private and a public nuisance' by the Court of Appeals, but that each time proceedings have been brought the property has changed hands, thus- compelling the relator to begin again de novo, the writ should be granted.
    Appeal by the relator, Charlotte Y. Ackerman, from an order of the Supreme Court, made at the New York Special. Term and entered in the'office, of the clerk of the county of New York on the 7th day Of March, 1910.
    
      Edwin L. Kdlish of counsel \IÁndsay, Palish <& Palmer, attorneys], for the appellant.
    
      Terence Farley of Counsel [Theodore Connoly with him on the brief], Archibald P. ' Watson, Corporation Counsel, for the respondents.
   Clarke, J.;

Appeal from an order denying an application for a peremptory writ of mandamus and dismissing the petition, “ unless and provided that if the relator bring in as additional defendants the present Owners of the offending premises referred to in said petition, permission being hereby granted to bring in said owners, an alternative writ of mandamus. directed to said defendants issue out of and under the seal of this, court commanding.them to forthwith show' why they should not be directed to remove and abate the encroachments referred to.”

- This was a notice of motion upon a petition to compel the park commissioners of the city of New York to abate a nuisance. . The petition set forth that petitioner was a citizen and for upwards of about twenty years last past owned in fee simple and resided in the dwelling house at No. 331 West Eighty-second street, New York city ; that- on or about the Í5th of' March, 1898, Clarence F. True and wife conveyed to her the piece, of real property adjoining the premises where petitioner resides, at the corner of Eighty-second street and. Riverside drive; that since the erection of petitioner’s dwelling, house and shortly after the conveyance to her of said premises and while' said True was the owner in fee simple of the several lots fronting on Riverside drive adjoining .said property, and" extending therefrom northerly to the southerly side of West Eighty-third street, the said. park board suffered to be erected on said last described property six buildings, each five stories in height, to be used as dwelling houses; that the entire front wall from the basement to the roof of said buildings extends into and encroaches upon said Riverside drive from three to four feet in a line perpendicular to the easterly. side of said drive; that such encroachments on said Riverside drive have been and are maintained thereon by the sufferance and with the consent of said park board; that the said encroachment prevents the public from using said sidewalk and obstructs public travel along said street and seriously injures the property of the relator hereinbefore described, and obstructs the view of and from said property of the relator and interferes with the relator’s easements of light, air and access ; that the encroachment of said wall is unlawful and is maintained in violation of law and the rights of your petitioner and contrary to the provisions of the Greater. New York charter; that the park board has control of Riverside drive and it- is its duty to remove all illegal structures and incumbrances therefrom, including those mentioned ; that petitioner. had caused to be served a notice requiring the removal of said incumbrance, and had been informed that the city of New York and the said park department would take no action; that said encroachments have not been abated or removed.

Por about eleven years Mrs. Ackerman, by legal proceedings, has been endeavoring to put an end to the illegal obstruction of a public street, caused by the erection upon • Riverside drive on land adjacent to hers of houses whose front walls project beyond the building line. (Ackerman v. True, 56 App. Div. 54; 71 id. 143; 175 N. Y. 353; 120 App. Div. 172.) In the. case in the Court of Appeals, that court unanimously held: “ That this encroachment upon the street was a public nuisance, and that as to the plaintiff it was a private nuisance, we have no doubt. *.. * * It becomes obvious, we think, that the plaintiff was entitled to maintain .this action not only for the purpose of abating the nuisance, but also to recover any damages she .might have sustained, by reason of the wrongful acts of the defendant in constructing and maintaining this encroachment upon the street.” .

It-might be supposed that, with this emphatic. declaratiop of her rights by the court of last resort she was in a fail, way to obtain the relief demanded. . Upon the new trial ordered by the Ooiirt of Appeals she did obtain a judgment on January 21,1905, directing a mandatory injunction for the removal of the nuisance. It appeared that upon that trial the plaintiff waived all damages against the'defendant for the maintenance of the nuisance, and the only judgment that was rendered was one for its removal. Upon appeal (120 App. Div. 172) this court by a bare majority vote felt constrained to reverse, upon the ground that at the time of the trial the defendant True was not the owner of the premises, but had con-, veyed them to one Applegate, and that the judgment' rendered directed the defendánt True to. enter upon another man’s property and destroy the building, thereon. The court also said': In our view, it could not be held that Applegate was bound by the judgment against this defendant, and hence he could not be compelled, on motion, to carry out the decree. When it appeared to the trial court that the present defendant was no longer the owner of the property upon which the nuisance existed, he could have suspended the trial and directed the plaintiff to. bring in the then owner. * * * The difficulty with suspending the trial of the action and directing the plaintiff to bring in the present owner of the property •is that! the ownership may continually change to bona fide grantees, and hence that the court would never be able to render a judgment of abatement of the nuisance.”

It is.claimed that the difficulty foreshadowed by the court has proved a real one, that notwithstanding the strenuous efforts of the plaintiff to obtain a judgment against the actual owner of the property, every time she brings the case on for trial it is discovered there has been a further change of ownership and the proceedings must be begun de novo-. She has now applied to the public authorities, having jurisdiction over the street, whose duty it is to prevent and remove encroachments thereon, to do their duty, and upon their refusal to act has invoked the power of the court to compel these public officials to perform their plain duty by mandamus.

In People ex rel. Winthrop v. Delany (120 App. Div. 801; affd., 192 N. Y. 533) we compelled by mandamus the corporation counsel to perform the duty imposed upon.him by law of instituting the necessary proceedings to obtain the appointment of commissioners in a street closing case. In People ex rel. Cross Co. v. Ahearn (124 App. Div. 840) we affirmed an order of the Special Term directing a peremptory writ of mandamus to issue to the president of the borough of Manhattan commanding him. to remove certain structures within the line of Fifth avenue appurtenant to the build- * .ing. known as Mo. 214 Fifth avenue.

In City of New York v. Rice (198 N. Y. 124), which was an action to restrain the defendant from maintaining and to compel him to remove a masonry wall about his property at the southeast corner of Eighty-ninth street and Riverside drive, which had been constructed beyond the house or building line and upon the public streets aforesaid, the Court of Appeals affirmed the judgment and held that any erection of permanent and substantial structures on the street not for a public use would constitute an encroachment or obstruction and would, therefore, be a public nuisance, and said: “It may be further observed that in the present case it is the city which is invoking the aid of the courts in undoing that which has been illegally done. Our decision of Ackerman v. True has been followed in several well-considered opinions by the Appellate Division of the Supreme Court and its authority should not now be questioned. (See City of New York v. Knickerbocker Trust Co., 104 App. Div. 223; McMillan v. Klaw & Erlanger Constr. Co., 107 ib. 407; Williams v. Silverman Realty & Constr. Co., 111 ib. 679; Hatfield v. Straus, 117 ib. 671; People ex rel. Cross Co. v. Ahearn, 124 ib. 840.) ”

Mo questions of fact are raised by the answering affidavits and it seems to us the petitioner has established a clear legal right and the court ought to compel the respondents to do their duty.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for a peremptory writ of mandamus is granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  