
    St. John, Plaintiff and Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
    1. The municipal corporation; the Mayor, Aldermen and Commonalty of the city of New York, although authorized by its charter to have and keep such and so many markets, at such and so many places within its corporate limits, as shall from time to time be established by the common council, cannot erect nor allow market stalls to be erected and occupied in the public streets of said city, theretofore regularly laid out and established as highways, and occupied as such, to the special damage of the owners of houses and lots fronting on such streets, without .being liable for such damage.
    2. The facts, that sheds or stalls are so erected and occupied by the permission of its commissioner of streets and lamps, and that fees, for the use of such sheds or stalls as market stands, at a fixed rate per day for a period of several months, are collected by its clerk of the market and by him paid to the comptroEer of such city, and that the erection and such occupation of such sheds prevent access to the houses fronting on such street and cause special damage to the owners thereof, are sufficient, prima facie, to establish the Eability of such corporation for such damage.
    3. The facts, that the space, (or shp so called) in and on which sheds are so erected and used, has been used as a pubEc street or highway for more than fifty years prior to such erection; and at the time of .such erection continued to be so used; that the corporation more than fifty years prior to such erection granted land bounded, on such sEp, and in the grant described said shp as a sEp “ caEed Oatharine shp as the same has been lately laid out and surveyed by” one of the city surveyors of said city; and by such grant required the grantees to erect a continuation of said slip, of a specified width, to be and remain for the free and common passage of, and a public street or way for the inhabitants of said city, in Eke manner as the other pubEc streets of the said city then were or lawfufly ought to be; and that such corporation thereafter directed said shp or street to be repaved, and assessed the expense thereof upon the owners of lands contiguous thereto, are, uncontradicted, sufficient evidence, in an action against said corporation for damages caused by obstructing the same; that such sEp is in fact and in law a pubEc street or highway; regularly established as such.
    4. A temporary interference by such corporation with, or obstruction of a street, by necessarily piling materials on a part of such street during a reasonable period for building or repairing a market, from which an incon- , verbenee may result to adjoining owners, wiE not create a EabiEty on the part of the corporation in favor of such owners. for the incidental losses consequent thereon.
    5. But such an appropriation, by the corporation, of a public street and sidewalk, (by the erection of sheds thereon and the occupation of the same for vending meats, vegetables and other articles usuaEy sold in the pubEc markets) as substantiafiy prevents access to or egress from adjoining buildings fronting on such street, and in effect deprives the occupants thereof of the capacity to prosecute their accustomed and lawful business therein, is unauthorized by law, and for the damages directly and necessarily caused thereby, the corporation is liable.
    (Before Bosworth, Hoffman and Pierrepont, J. J.)
    Heard, June 18;
    decided, August 7, 1858.
    
      This is an appeal by the defendants, The, Mayor, Aldermen and Commonalty of the City of New York, from a judgment in favor of George S. iSt. John, the plaintiff. The action was tried before Mr. Justice Bosworth and a jury, on the 15th day of March, 1858. It was brought to recover damages for injuries alleged to have been sustained by the plaintiff in the months of June, July, August and September, 1854, by reason of the erection of sheds, for the sale of meat, vegetables and the various articles usually sold at markets; 'in front of the plaintiff’s premises Hos. 17 and 19 Catharine slip, (between Water and South streets in the city of Hew York,) which premises were occupied by the plaintiff, as an eating and lodging house.
    It appeared from the evidence; that these sheds were built on posts set in the gutter and on the sidewalk; that the gutter was so obstructed that the water could not pass through it; and that the street or slip and the sidewalk were also thereby so obstructed that no carriages or carts could get nearer to plaintiff’s premises than the corner of South street, or the corner of Water street, and that two persons could not walk abreast, on the sidewalk.
    It was also proved that these sheds were erected by the permission and under the direction of the superintendent of streets and lamps. That the clerk of Catharine market collected rent from the occupants of these sheds, at a certain rate per day, and paid the same to the comptroller of the city.
    Evidence was also given of the loss of custom caused to the plaintiff by the erection and occupation of these sheds, during the time that they continued to be kept up and used, as market stands.
    The action was tried on the same pleadings, as on a previous trial had in January, 1856. The proceedings on the first trial are reported in 6 Duer, p. 315. The evidence given on the first trial, was given on the last. The plaintiff also proved on the last trial by B. F. Langdon, (then nearly 74years,of age), that he had known Catharine slip since he was a boy; ever since 1793; there was then there only one market from Cherry to Water streets; that Catharine slip had been always used as a public highway on both sides, except when the sheds (complained of) were built; it was filled out to South street in 1820. He also gave in evidence a deed bearing date the 9th day of September, 1772, executed by the defendants, as grantors to William Bedlow and others as grantees, of a certain lot “between high and low water mark situate, lying, and being in the outward of the city of New York opposite to the grounds of the said William Bedlow” and others; 205 feet in length on the east and west sides thereof, and in breadth along the strand and fronting the East river, at low water mark, 55 feet 10 inches, and in the rear, upon the ground of the said William Bedlow and others 76 feet 1 inch English measure, bounded “"on the west upon a certain slip there lately laid out, and called Catharine slip, as the same has been lately laid out, and surveyed by Girard Bancker, one of the city surveyors;” &c. By said deed, the grantees therein, covenanted, (in addition to making other streets) to erect and build, “ a good, sufficient and firm wharf or street of 24 feet, English measure, in breadth, on the west side of the water lot hereby granted, the whole length thereof, contiguous and adjoining to a certain street there lately laid out, and called Catharine slip ”; to keep and uphold the same in good repair, and that the same should forever thereafter continue, remain and be for the free and common passage of, and public streets and ways for the inhabitants of the said city of New York, and all others passing and returning through or by the same, in like manner as the other public streets of the same city now are, or lawfully ought to be ”; &c.
    The premises in question are situate between Water and South streets; front on Catharine slip; are thirty-four feet and eight inches in width, and are known as Nos. 17 and 19 Catharine slip.
    The plaintiff’s counsel also offered in evidence an assessment list, for repaving Catharine slip from Cherry to South streets; confirmed. The defendants’ counsel admitted that it had been taken from the street commissioner’s office, and admitted that the certificate of confirmation was signed by the clerk of the common council.
    “ The plaintiff’s counsel then offered in evidence a resolution of the board of eouncilmen, July 6th, 1854, offered by councilman Seely, for the purpose of showing that notice of the matters which the resolution recites, was brought home to the defendants.
    “ The counsel for the defendants objected to the reading of the resolution on the ground of immateriality and irrelevancy. Objection overruled, and exception taken.
    “It was then read, as follows:
    “ Whereas, Butcher-stalls have been removed flom Catharine Market to the east side of Catharine street, obstructing the sidewalk, and seriously interfering with those who occupy the basements on said street, between Cherry and South streets; therefore, be it
    “ Besolved, That the commissioner of streets and lamps be and he is hereby directed to state by whose authority the said stands were so placed in Catharine street, and how long the same will remain, and report the facts to this board forthwith.”
    David T. Valentine was then called on the part of the plaintiff, and being sworn, testified as follows:
    “ I have been clerk of common council for a good many years; General Jacob Morton was clerk in 1828; that is his signature to that assessment list; I was first connected with the office in 1821; I am familiar with the records in the office of the clerk; this paper was included in a communication to the board, and when this was passed, the clerk signed it, and it is a proof of confirmation; this is inclosed with a communication from the street commissioner, and when the list was confirmed by the board, the clerk signed this.
    “ Plaintiff’s counsel then offered to read the said assessment list in evidence.
    “ The counsel for the defendants objected to the same being so read, on the ground of irrelevancy and immateriality.
    “ The Court overruled the objection, and the same was read in evidence, and the counsel for the defendants excepted.”
    This assessment list was dated the 30th of June, 1828, and purported to have been confirmed by the common council on the 28th of July, 1828. By it, all the lots between Cherry street and South street, fronting on Catharine slip, were assessed their respective proportion of the expense “ for repaving Catharine street from Cherry street to the southerly side of South street.” When the plaintiff rested, the defendants moved for a nonsuit, which motion was denied, and they excepted.
    When the testimony was closed, the defendants requested the Court to charge, (in substance)
    
      1st. That the defendants, under their corporate powers, were authorized to locate the market in any part of Catharine slip that they saw fit, and, therefore, were not liable for any damage caused by erecting the sheds in question.
    2d. That although the sheds were erected by permission of the superintendent of streets and lamps, the corporation is not liable by reason thereof, unless it be shown that this officer, in giving the permission, acted under an ordinance of the common council duly passed.
    3d. That the defendants are entitled to collect market fees from those who sold within 300 yards of the market; and the collection of fees by the deputy-clerk of the market was no evidence that the defendants sanctioned the erection of the sheds.
    4th. The liability, if there be any, is that of the individuals erecting and occupying the sheds.
    5th. The jury must be satisfied that the sheds were not necessary for the occupants of the old market while the new one was being rebuilt; or were kept up for a greater length of time than was necessary to rebuild.
    6th. That there was no evidence of either fact.
    7th. That no cause of action had been shown.
    The Judge declined to charge either proposition, and the defendants excepted.
    The printed case concludes thus:
    “ The Court then charged the jury, that the plaintiff is entitled to recover in this action, and the only question is the amount of damages which you ought to find, and instructed them as to the rules and considerations by which they were to be governed, in ascertaining the amount of damages to which the plaintiff was entitled.
    “The defendants’ counsel excepted to that portion of die. charge of the said Justice, in which he instructed the jury that the plaintiff was entitled to recover.”
    The jury found a verdict in favor of the plaintiff for $2,000 damages, and from the judgment entered on that verdict, this appeal was taken by the defendants.
    
      B. Busked & A. B. Lawrence, Jr., for appellants.
    
      I. The motion made by the defendants’ counsel to dismiss the complaint, should have been granted.
    1. There was no legal evidence before the Court showing that Catharine slip, at the point referred to in the complaint, was a public street. (St. John v. The Mayor, 6 Duer, 315.) The evidence of the witness Langdon does not avail the plaintiff in this respect, because the witness, himself, admits that he had never made any measurements of the slips—that he did not know its present or its past width, and he did not pretend to state that he knew that the slip had ever been regularly laid out as a public street. It is' true that he says that the slip -was used as a public highway; but he gives no fact which justifies him in this assumption, and it is impossible from his evidence to ascertain whether the plaintiff’s premises border on the same street or slip to which he refers.
    2. Besides, it appears from Langdon’s testimony that the slip was extended to South street, in 1820; that previous to that time the slip ran only to Water street. There is no evidence showing whether the portion of Catharine slip, included between Water street and South street, was used as a street, or as a market place. The plaintiff’s premises were situated between Water and South streets.
    3. Giving the release to Bedlow and others, the most favorable construction for the plaintiff, respondent, it does not show that the slip at the point at which the plaintiff’s premises are situated was a public street or highway. The release was executed in September, 1772, and according to Langdon’s testimony, Catharine slip, between Water and South streets was not filled till 1820.
    Surely the release cannot be quoted to show for what purpose Catharine slip, between the two last named streets, was used or appropriated.
    4. Nor does the assessment made in 1828, for repaving Catharine slip, establish that the slip was intended to be or was used for a public street. It might be very proper and necessary that the passages along or through the market place should be paved, and if the defendants saw fit to order such pavement to be made, their charter powers were extensive enough to enable them to impose an assessment upon the owners of adjacent property to defray the expense thereof. It follows, therefore, that the difficulty suggested by the General Term when this case was last before it, in regard to the absence of proof that the slip in question, in front of the plaintiff’s premises, was a public street, has not been removed on the new trial.
    5. But, admitting that it was established that Catharine slip, in front of the plaintiff’s premises, was a public street, still the complaint should have been dismissed, because it was not shown that the sheds complained of were built by order or permission of the defendants.
    The witnesses Varían and Storms testify that they received permission to put up their sheds from the commissioner of streets and lamps. By whose authority or permission the other sheds were put up, does not appear; but if it be assumed that they were built by the same permission, the plaintiff is not aided. It is not part of the duty of the commissioner of streets and lamps, by the charter of these defendants, to grant permits to parties to put up sheds in streets adjoining or adjacent to a public market. (Charter, 1849, § 14; Davies’ Laws, 207.) That officer is only charged with the duty of transferring butchers’ stalls' in the public markets, and has no authority to grant licenses to parties to put up stalls outside of the public markets.
    As he exceeded his powers, the defendants are not responsible for the consequences of his act. (Boom v. City of Utica, 2 Barb., 104; Smith v. Mayor, &c., 4 Sand., 221.) There was no resolution of the common council of the defendants shown, directing the commissioner to put up the sheds, or to authorize the butchers to put them up, and the defendants cannot be held to have directed him to do so. The plaintiff failed, therefore, to prove his material allegation, that the defendants, through their agents, &e., erected, &c., or caused to be erected, &c., the stalls, &c. The allegation was material, was denied, and should have been proved.
    Again, the sheds having been erected by the butchers, without any lawful authority from these defendants, the action should have been brought against the butchers. The relation of principal and agent, or master and servant, did not exist between the butchers erecting the stalls and defendants. (Blake v. Ferris, 1 Seld., 48; Pack v. Mayor, 4 id., 222; Kelly v. Mayor, 1 Kern., 432; Stevens v. Armstrong, 2 Seld., 435; Laugher v. Pointer, 5 Barn. & Cress., 547.)
    
      6. Assuming, however, that the defendants are bound by the permission given by the commissioner of streets and lamps, then we say that the defendants have power to provide for the rebuilding and' repairing of the public markets, and to provide the occupants of such markets, while the same were being repaired or rebuilt, proper places for the sale of their provisions ; and the owners and occupants of premises adjoining such markets hold, in subordination to the right and duty of the defendants, to do whatever is necessary for their maintenance. (St John v. The Mayor, swpra.)
    
    The plaintiff should have shown, therefore, affirmatively, that the sheds in question, if authorized to be built by the defendants were unnecessary for the accommodation of the occupants of the old market during the progress of the work of rebuilding the same, or that such sheds were continued in their location for a longer time than was necessary for the rebuilding of the market. There is no evidence in the case which shows that the stalls or sheds were not necessary or proper for the use of the butchers and the accommodation of the public, while the market in Catharine slip was being rebuilt; nor is there anything which proves that they were kept in front of the plaintiff’s premises for an unreasonable length of time. (Opinion of Woodruff, J., supra; Montgomerie Charter, § 17; Davies’ Laws, 178.)
    There was, therefore, no neglect of duty shown- on the part of the defendants. The appellants insist that the learned Justice erred in refusing to dismiss the complaint.......
    H. The release to Bedlow and others was improperly admitted in evidence.
    I. From the testimony of. Langdon, it appears that Catharine slip,, at the date of such release, did not extend below Water street.
    2. The slip between Water and South streets, which the plaintiff claimed was a public street or highway, not being in existence, the release could have no bearing on the issue in the cause.
    III. The assessment list for repaving Catharine slip, &c., should have been excluded.
    1. As is shown under the first point, the fact that defendants ordered the slip to be repaved, has no bearing on the question whether the slip was a public street or highway.
    
      2. If Catharine slip was filled in to South street as late as 1820, the proceedings must have been taken under the acts of 1818,1816, &c., (Davies’ Laws, pp. 529, 596, 602,) and the original report of the commissioner, or a certified copy therof, was the best evidence that the slip between Water and South streets had been opened as a public street.
    IY. The resolution offered in the Board of Oouncilmen, July 6, 1854, was improperly admitted in evidence. It was not shown that the same was passed by the Oouncilmen, and until such passage it cannot be considered as expressive of the views _ of the board.
    Y. The witness Yarian’s testimony, as to the objection of the plaintiff to the stalls being erected in front of his premises, should have been stricken out. If the defendants had the right to put the sheds there, the objections of the plaintiff could of course be of no avail; and if they had not, his failure to object' would not preclude a recovery in this case. . . .
    YI. For the reasons stated in the first point, the learned Justice erred in refusing to charge as requested in the 1st, 2d, 4th, 5th, 6th and 7th propositions of the defendants’ counsel.
    YII. The learned Justice erred in refusing to charge as requested in the third proposition of the defendants’ counsel.
    1. The ordinances of the defendants subjected all parties selling meat or garden produce, to the payment of market fees. The defendants were authorized to pass such ordinances. (Montgomerie’s Charter, section 14; Davies’ Laws, p. 175.) And it was the duty of the deputy clerk to collect the fees from persons selling such articles within the prescribed limits. The collection of the fees did not, therefore, import the sanction or approval of the erection of the sheds by the defendants. If the clerk collected any thing beyond the fees, as rent, he collected it in his . own wrong; and the payment by him of the amount thus collected, does not charge the city with any liability growing out of the erection or continuance of the sheds.
    YIII. The learned Justice erred in instructing the jury that the plaintiff was entitled to recover.
    IX. The defendants insist that the 4th, 5th, 7th and 8th exceptions are well taken, and the judgment should be reversed, and a new trial ordered.
    
      
      A. J. Willard & J. Bancroft Stevens, for respondent.
    I. The evidence shows, without question, that the premises of the plaintiff were situated upon an ancient highway of the city of New York, which has been dedicated to the use of the public, and the employment of which as a market-place was subordinate and incidental to its recognized use as a public street. For the proof of these facts, we refer to—
    1. The testimony of Mr. Langdon.
    2. The deed of release from the defendants to Bedlow and others, dedicating Catharine slip, with other streets, to the use . of the public, “in like manner as the other public streets of the same city.”
    3. The evidence of the acts of the defendants in 1828, in paving Catharine slip, and assessing the expense among the owners or occupants of the houses and lots intended to be benefited by the work.
    II. The corporation are liable to the plaintiff in damages for the injury occasioned to his business by the erection and use of the sheds,upon this public highway.
    1. Mr. Glazier, the superintendent of sheds, directly permitted their erection.
    2. The corporation, through the clerk of tha market, collected rent for the use of the sheds.
    3. The evidence fully establishes that the sheds were a com- ' mon nuisance, injurious to health and business, and peculiarly to the business of the plaintiff.
    4. The corporation are responsible for the breation of a nuisance, in the same manner that private individuals are liable. (Brower v. The Mayor, 3 Barb. S. C. R., 257.)
    5. Even if the erection of the sheds by the defendants was a lawful act, they were bound at their peril to see to it that the sheds should not prove a nuisance to the plaintiff
    For the discussion of this doctrine, see Lacour v. The Mayor. (3 Duer, 406.)
    ‘ 6. And even if the defendants are not directly chargeable with the creation of the nuisance in question, they are responsible for Ailing to remove it. (Hudson v. Mayor, &c., of New York MS. opinion, Court of Appeals.)
    
      The judgment should be affirmed.
   By the Court.

Hoffman, J.

— This is an appeal from a judgment in favor of the plaintiff against the defendants, for the sum of $2,564.13, entered upon the verdict of a jury for $2,000, with costs and disbursements.

The case was formerly tried upon the same pleadings, and the learned Judge then instructed the jury unqualifiedly, that the plaintiff was entitled to recover, and they had only to assess the damages. The verdict being taken subject to the opinion of the Court, the case was brought before the General Term, where a new trial was ordered.

The points which were then declared to be established as facts, or settled as law, were the following:

The plaintiff’s premises were situated on a market-place having a passage along the front of the premises with a sidewalk. It was not proved, whether this passage had ever been laid out as street or highway. There was evidence however of its having been used as a street.

It was shown, that the obstruction complained of, as causing the damage to the plaintiff, arose from occupying the passage and sidewalk with stalls and sheds while the market was rebuilding. It was the duty of the defendants to rebuild, and the inference was, it was done by their authority.

The defendants had all needful authority for this purpose, and the owners of houses and lots upon a market-place, held their premises in subordination to the right and duty of the defendants, to do whatever was necessary for the maintenance of the market; and must submit to whatever inconveniences necessarily resulted from the exercise of that authority. If the rebuilding of the market required a temporary obstruction of the street or passage in the market-place; in front of the plaintiff’s premises, for a reasonable time, while the work was in progress, the public and the adjoining owners were bound to submit to the inconvenience, for the sake of the greater and paramount welfare of the public, for whose use the public markets were authorized by law to be built and maintained. The question to be determined was, not merely, whether the passage in front of the plaintiff’s house was obstructed, but also whether access to his premises was obstructed unnecessarily and unreasonably, or for an unreasonable time; and also (if the right of the defendants to cause the obstruction was conceded or appeared from the evidence then) whether the temporary erections were needlessly offensive or noxious, and whether the defendants caused the nuisance in this latter sense; or neglected any duty which they owed to the plaintiff by not abating it, if it proceeded from the acts or neglects of the tenants of the stalls or sheds.

The Judge on the present trial instructed the jury that the plaintiff was entitled to a verdict, and it was only for them to assess the damages.

The first and material question is, whether the evidence has so varied the case as formerly presented, as to show, that the open space upon which the plaintiff’s shop fronted, was in fact a public street of the city ?

The learned Judge did not submit this as a question of fact to the jury. Was this on the ground that it was fully proven, or that it was immaterial ? I presume that it was for the former reason; and I agree that the fact is made out by the testimony.

The deed of the 9th of September, 1772, from the defendants’ predecessors, conveyed, it is time, only from high water to low water-mark, that is, from Cherry to Water street. But it defines the western boundary upon a slip called Catharine slip, and the grantees “ are to erect a firm wharf or street of 24 feet width, on the west side of the water lot thereby granted, of the whole length thereof, contiguous and adjoining to a certain street there lately laid out, and called Catharine slip.”

We have therefore the street down to Water street, declared to have been laid out by the corporation itself.

There is an assessment list in evidence for paving Catharine street from Cherry to South street, dated in 1828. It came from the street commissioner’s office, and is signed by the clerk of the common council, and sufficiently proven by Mr. Valentine, the clerk. The resolution of the board of councilmen, of July 6th, 1854, is another piece of evidence to show that the defendants recognized the space as being a public street.

The parol evidence shows that it was filled up out to South street in 1820, and that it was always used as a public highway on both sides, until the sheds were built.

This street was thus opened by a continuation oí Catharine slip or street from Water to South street. It had been a public street from Cherry to Water, and for the whole of both sections, the street was laid out over vacant land under water, belonging to the corporation. ■

Ho proceedings under any statute were then necessary. The corporation dedicated it. Governor Dongan’s charter (§ 2,) authorized this. On the assumption of this fact being established, the next inquiry is, as to the law which will apply.,

. The seventeenth section of Montgomerie’s charter provided that the mayor, aldermen, &c., might have, hold, and keep such and so many other markets at such and so many other times and places, in the said city of Hew York, as shall from time to time be ordered, established, erected, and appointed by the common council for the time being.

And by an act of 1822 (Session Laws, ch. 101), the mayor, &c., “ might cause public markets to be erected and kept over the waters of the East and Horth rivers, adjoining to any of their docks and wharfs in the city of Hew York; provided they did not interfere with the flow of the waters, nor be built over the same so as to occupy a distance exceeding one hundred feet from the lines of the city, as established by law on the said rivers.”

The proposition appears to me very clear, that the power to build or to repair markets is entirely subservient to the rights conferred upon the public, by the dedication and opening of a public street by the corporation, over its own land. It follows that the occupation of such a street, and obstructing the use and enjoyment of the same for the reparation of a market adjoining to it, is, in strictness, unlawful, and a breach of the implied contract between the public and the city. It is of special consequence to the owners of houses built upon the street. An injury is, of course, more likely to arise to them than to others.

I do not deny that the corporation may temporarily obstruct a portion of a street by piling materials, or making preparations essential to repair a public market. They grant permits for a similar purpose, to individuals in relation to building or repairing private edifices. "But such a right -is widely different from the power of erecting and keeping, market sheds on a public highway, during an indefinite period and to, the manifest detriment of the owners of adjacent property.

I think it clear that the defendants are responsible, and not any subordinate agents. Their officer, the clerk of the market, collected rents from the occupants of the sheds, and paid them to the comptroller. One branch of the common council had actual notice of the obstructions, on the 6th of July, 1854. It is not a case where the liability of a principal is transferred to an agent.

The judgment must be affirmed, with costs.

Judgment affirmed.  