#### Riverdale Realty Company, Respondent, v. The City of New York and Others, Appellants, Impleaded with Riverside Contracting Company, Defendant.

First Department,

June 4, 1915.

Municipal corporations—erection of inclosed dump on water front at Seventy-seventh street, city of Mew York — such structure not necessarily a nuisance — statutory restrictions as to erection of structures on park property — charter construed.

The erection of a dump inclosed in a building on lands reserved for dock purposes in the city of New York, intended to replace an open dump formerly maintained by the street cleaning department, is not essentially a nuisance. Whether or no it will be a nuisance depends upon the method of its use rather than upon the nature of the structure.

The erection of such inclosed dump on lands reserved for dock purposes on the Hudson river near Seventy-seventh street, in the city of New York, is not in violation of section 9 of chapter 152 of the Laws of 1894, forbidding the erection of structures on the water front which shall be detrimental to the health of the public, or injuriously affect- the public use and enjoyment of Riverside Drive or property fronting thereon, where there is nothing to show that such inclosed dump, replacing an open dump previously maintained, will in any way be detrimental to public health, or enjoyment, or be a nuisance.

Neither is the erection of such dump a violation of section 1 of chapter 900 of the Laws of 1895, which forbids the erection or maintenance of a dump upon any public park domain or upon the water front of a park domain above Fifty-ninth street in the city of New York, for the water front on the Hudson river near Seventy-seventh street is not part of any public park or a water front to such park, as at that point Riverside Drive has no water front.

Clarke, J., dissented.

Appeal by the defendants, The City of New York and others, 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 23d day of March, 1915, granting the plaintiff’s motion for an injunction *pendente lite.*

*John F. O’Brien,*for the appellants.

*Charles L. Craig,*for the respondent.

*104SCOTT, J.:

This action is brought by a corporation owning property facing the Riverside Drive and Park to restrain the city of New York and its commissioner of docks' and street cleaning commissioner from proceeding with the erection of a covered dump within an inclosed building for the use of the department of street cleaning on land reserved for dock purposes on the Hudson river near Seventy-seventh street. This dump is intended to take the place of an open dump which has been maintained for a number of years at Seventy-seventh street. The structure sought to be restrained has been duly approved by the municipal authorities, the necessary money appropriated for its construction, a contract awarded therefor and the work partially completed. The order appealed from virtually decides the action giving to plaintiff all the relief asked for in the complaint. The court at Special Term based its action solely on the ground that the proposed structure was illegal, refusing to find that it constituted or that its operation would constitute a nuisance in fact. We agree that the maintenance of the proposed dump will not, so far as appears by the papers before us, constitute a nuisance in fact, and indeed whether it will or not will depend on the method of its use, rather than upon the nature of the structure. So far as the structure itself is concerned, it appears to be well designed to reduce to a minimum the objectionable features which necessarily inhere to every public dump, certainly it should be much less objectionable from every standpoint than the open dump which it is designed to supersede and which has been maintained for a number of years at Seventy-ninth street.

The sole question, therefore, to be considered is whether or not the proposed structure is forbidden by law, passing without deciding the question whether plaintiff has brought itself by its complaint within the terms of the so-called Taxpayers’ Acts. (See Code Civ. Proc. § 1925; Glen. Mun. Law [Consol. Laws, chap. 24; Laws of 1909, chap. 29], § 51.)

It appears from the complaint that Riverside Park and Drive, lying between Seventy-second and One Hundred and Twenty-ninth streets and east of Twelfth avenue, was acquired by the city of New York in the year 1872. By chapter 152 of the *105Laws of 1894 there was added to the park a strip of land extending from Seventy-second to One Hundred and Twenty-ninth streets, lying westerly of the route or roadway of the Hudson River Railroad Company, and easterly of the bulkhead line of the Hudson river. Out of the strip thus generally described there was excepted and reserved two parcels of land which were *“*set apart for public docks, wharves or commercial purposes.” It is upon one of these excepted and reserved areas that it is proposed to erect the covered dump sought to he enjoined.

As to each of these excepted and reserved areas, it is provided by section 9 of the act as follows: “ The department of docks of said city shall have and possess in respect to the two parcels of land aforesaid set apart as and for commercial or dock purposes the same powers of control, maintenance, construction and jurisdiction which the said department has and now possesses under existing laws in respect to the water front or lands under water in other portions of said city, including the power to erect and maintain piers extending to the pier line as established by said chapter two hundred and eighty-eight, laws of eighteen hundred and sixty-eight. But no portion of the said lands, bulkhead or water front herein set apart for commercial or dock purposes shall be devoted to any other use or purpose, and no building, shed or any other structure shall he placed upon or within the same which shall in any manner be detrimental to the health of the public or injuriously affect the public use and enjoyment of said Riverside park as hereby extended, or property fronting thereon, or be in any other respect a public or private nuisance.”

We are unable to find in the statute any inhibition against the erection and maintenance of such a structure as is contemplated by the city authorities. The dock department is given the ‘ same powers of control, maintenance, construction and jurisdiction which the said department has and now possesses under existing laws in respect to the water front or lands under water in other portions of said city.” Among the powers and duties conferred and imposed upon the r commissioner of docks is that he shal*l*designate and set apart for the use of the department of street cleaning, the board of health, and other city depart*106ments, suitable and sufficient wharves, piers, bulkheads, slips and berths in slips for the use of said departments.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 836.) Nor does the last sentence of the section, when rightly construed, pro Mbit the erection of the structure sought to be enjoined. The use of a dock, pier or bulkhead by the street cleaning department is distinctly a dock purpose, and is so recognized by the section of the charter above cited. The inhibition against the erection of any building or structure “which shall in any manner be detrimental to the health of the public or injuriously affect the public use and enjoyment of said Riverside park as hereby extended, or property frontmg thereon, or be in any other respect a public or private nuisance ” means no more than that no structure shall be erected which will m fact be detrimental to health or enjoyment or a nmsance, and we find nothing in the papers before us to justify the conclusion that the proposed inclosed dump will be m fact such a structure. It certamly should be less detrimental to health and comfort, and less of a nuisance in fact, than the open dump which it is designed to supersede.

The plaintiff refers with confidence to chapter 900 of the Laws of 1895, upon which the court at Special Term based its decision. The 1st section of that act reads as follows:

“Section 1. No brewery, distillery, slaughter-house, soap, candle, varnish, vitriol, glue, ink, turpentine or bone factory, or manufactory of gunpowder, or any bone-boiling establishment, or factory for tanning, dressing or preparing skins, hides or leather, *or crematory, dump or receptacle for the deposit of garbage, ashes or refuse of any hind,*or any other noxious, dangerous or offensive purpose or establishment whatsoever shall be erected or established, upon any public park domain or upon the water-front of said park domains above Fifty-ninth street within the city and county of New York.”

The prohibition contained in this section is specifically directed towards the erection of objectionable structures “upon any public park domain or upon the water-front of said park domains above Fifty-ninth street.” The land upon which it is proposed to erect a structure sought to be restrained is certainly *107no part of any public park domain, nor is it the water front of such park domain, for at the point in question Riverside Park has no water front. There are long stretches of park domain between Seventy-second and One Hundred and Twenty-ninth streets, which, under the act of 1894, run down to and abut upon the Hudson river, and there are other parks above Fifty-ninth street which also run down to and abut upon the water. As to all of these there is a water front of the park domain, but at the point at which it is proposed to construct the covered dump the park domain does not come within nearly or quite 200 feet of the water, and consequently it has no water front. It is not without significance that although an open dump has been maintained for many years at the foot of Seventy-ninth street, no one seems to have invoked the act of 1895 as a ground for enjoining its maintenance.

The moving papers are filled with allegations wholly irrelevant to the question involved in this appeal, and which for that reason we do not discuss. It is sufficient for the purpose of this appeal that we do not find that the proposed structure will constitute a nuisance in fact, or that its erection and maintenance are forbidden by law.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., and Dowling, J., concurred; Clarke, J., dissented.

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