#### George A. Higgins, Plaintiff, *v.*The New York Dock Company, Defendant.

(Supreme Court, Kings Special Term for Motions,

January, 1912.)

Pleading—: Motion for judgment on the pleadings.

Nuisance — Nature of private and public nuisances and liability therefor— Actions for abatement — Public nuisance.

A motion for judgment on the pleadings under section 547 of the Code of Civil Procedure is properly made in Kings county at the special term for motions and not at the special term for trials.

It is well settled that an individual may not maintain an action to abate a public nuisance, the removal of whiijli lies with the public authorities, unless he shows some special injury peculiar to himself.

*228Where the complaint, in an action by one not an abutting owner and having no interest in the locality to restrain defendant from operating its railroad across certain streets between another street and the water line of New York bay and to compel the removal of- the tracks and other appurtenances of said railroad from said streets, - alleged that defendant had no right to maintain and operate a railroad across said streets and that it is a public nuisance, and allegations concerning interference with plaintiff’s business do not relate to any existing conditions which would justify injunctive relief, defendant "is entitled to judgment on the pleadings for plaintiff’s' failure to allege any special damage to him.

Motion by defendant for judgment on the pleadings.

Charles E. Hotchkiss, for motion.

Joseph F. Conran, .opposed,

Kelly, J.

The defendant moves for judgment on the pleadings, as provided in section 547 of the Code of Civil Procedure. 'Such motion is properly made at the special term for motions. ' While the questions involved are similar to those raised by demurrer, this section was added to- the Code in 1908, providing for a speedy determination of the question of the sufficiency of pleadings. Mitchell v. Dunmore Realty Co., 135 App. Div. 583; White v. Gibson, 61 Misc. Rep. 436; Schlessner v. Goldsticker, 135 App. Div. 435. The plaintiff’s objection that the motion -should be made at the special term for trials is, therefore, overruled.

The plaintiff demands judgment that a perpetual injunction issue against the -defendant restraining it from operating a railroad across Sullivan and King streets, between Ferry street and the water line of Hew York bay in the twelfth ward of the borough of Brooklyn, and compelling defendant to forthwith remove the tracks and other appurtenances of the railroad from the streets in question. It is charged in the complaint that defendant has no right to maintain and operate the railroad across the streets in question and thát it is a public nuisance. The defendant'bases its motion for judgment upon the failure of the plaintiff to *229allege any special damage entitling him to maintain the action. He is not an abutting owner; and defendant insists that the absence of individual interest, disclosed in the complaint, amplified by the bill of particulars,, shows that he has no right to maintain the action.

. That an individual cannot maintain an action to abate a public nuisance, unless he shows some special injury peculiar to himself, is well settled. Gallagher v. Keating, 40 App. Div. 81; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Adler v. Metropolitan E. R., 138 id. 173; Kavanagh v. Barber, 131 id. 211. The removal of public nuisances lies with the public authorities. The plaintiff appreciates this, and he sets forth his own particular grievance. This railroad runs along the water front on the docks, connecting the various storage warehouses of the defendant company. The dispute between the' parties evidently is whether King street and Sullivan street run down to the water across the defendant’s docks and bulkhead. The plaintiff claims they do; defendant insists that they do not.

Plaintiff alleges that he *had*been engaged for many years in the liquor, restaurant and catering business at 14 Hamilton avenue, a locality some distance removed from the *locus in quo.*It will be noticed that the allegation is in the past tense. He was not engaged in business at this point at the date of the commencement of the action, and his.bill of particulars shows that he gave up business there five years prior thereto. He lives at Ocean Parkway .and •Hinety-seventh street, many miles away from the locality. The allegations in the complaint, therefore, concerning interference with his business do not relate to any existing conditions which justify injunctive relief.

In substance, his claim is that, when'he was in business at 14 Hamilton avenue, excursion boats and barges used the dock at what he describes as the foot of King and Sullivan streets'. He says that he bought *“*and will in the future, buy the privilege of selling drinks and meals on many excursion barges and *realize*large profits therefrom;” that said excursion barges, for many years prior to the construction. of defendant’s railroad, started from these docks; but *230he alleges, in paragraph '9, that, because of the obstruction to the street, the. excursion barges abandoned the docks and went elsewhere. He has, therefore, lost the profit resulting from his dealings with the excursionists. So far as he alleges any use of the. streets, he couples- it with" an averment that it was for the delivery of goods to- the excursion barges.. Referring again to the bill of particulars, we see that this removal of the excursion barges must have occurred at least five years before the commencement of the action.

Plaintiff’s theory adavanced upon the argument was that, if the tracks are removed, the excursion barges will come back, he will return to Hamilton avenue, re-engage in his liquor business, will be able to- make contracts with the excursionists with resulting profits; and this expectation as to the future, with all the manifest contingencies, gives Mm, as he insists, a standing to champion the public Cause against the unlawful appropriation of the streets. I tMnk not. The case is very like Gallagher v. Keating, *supra,*where it was held'that the plaintiff suffered no special injury and could not he heard to urge the removal of a public nuisance. He is not an abutting owner, -he has -no- business interest in the locality and has no use for the alleged streets different from every other citizen. Without in any way passing upon the legality of the defendant’s actions, I cannot see how the plaintiff can insist that the operation of the railroad shall be enjoined and the tracks removed.' The defendant’s motion for judgment on the pleadings is, therefore, granted.

Motion granted.