#### William P. Hickok, Respondent, *v.*The City of Mount Vernon, Appellant.

Second Department,

June 23, 1911.

Municipal corporations — permit to move Rouse — revocation — Highway — injury to trees — evidence — prospective injury.

Where in an action to recover damages for the revocation of a permit to move a house through city streets, it appears that the permit was ■revoked on account of injury that had been and would he done to shade trees, it is error to exclude evidence of the prospective injury to trees on the streets through which the house would pass.

Both the permit and the undertaking accompanying it were entire, and the illegal sacrifice of trees at any part of the way was unwarranted.

Where plaintiff had done substantial injury to trees on a street throngh which he had already passed and it appears that he will do similar injury ■ on the streets through which he must go, the municipal officers are within then duty in revoking his permit and stopping the menaced destruction.

One wrongfully purposing to cut trees will be.enjoined before and not after the harm is done.

Where plaintiff avowed his intention to injure the trees in his future progress, the municipality’s power to revoke the permit may be tested '' not only by his conduct in the use of it but also by his proposed conduct.

That plaintiff had given a bond conditioned that he would not injure the trees does not give him a right to injure them.

The city’s failure to ascertain that the moving of the house could not be done without a breach of an ordinance protecting shade trees does not give the plaintiff a right to damages fora revocation of the permit.

Appeal by the defendant, The City of Mount Yernon, from a judgment of the Supreme Court in fayor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes.

*Frank A. Bennett, Corporation Counsel,*for the appellant.

*Isaac N. Miller*[ *Jacob Landy*and *Hugh M. Hewson*with him on the brief], for the respondent. .

*600Thomas, J.:

The plaintiff received from the defendant a permit to move a house along Worth Sixth avenue to Valentine street and along that street' to a proposed location thereon. The house was moved into the street on May sixth, and was carried forward about fifty feet when the defendant’s commissioner of public works forbade continuance. On May twenty-fifth the defendant’s common council directed the removal of the house from the street within five days, and thereupon plaintiff sold the house and has recovered damages for defendant’s refusal to permit the house to be moved some 1,600 feet farther to the place designated to receive it. The permit allowed use of the streets for the operation for eight working days. The permission was not recalled for delay, but on account of injury that had been and inevitably would be done to the shade- trees in Worth Sixth avenue and Valentine street. The court permitted evidence of such injury in Worth Sixth avenue, but excluded similar evidence relating to Valentine street. This was error. The permit was entire, as was the undertaking, and illegal sacrifice of the trees at any part of the way was unwarranted; The plaintiff’s testimony showed that further progress of the house would have resulted in injury to the trees on the street- and avenue, which he described as follows: ‘‘ Those trees branched out like all. trees do when they get up a distance of-about fifteen feet from the ground. Branched over like all trees do. I do .not say I could have gone between those trees without cutting the branches; I say I would; have had to cut the branches; I would not have had to cut the trees down. I would have had to cut off from those trees at léast every branch that went from the direct line of the trunk out into the street, every one of them, from both those trees on both sides of the street. That is also true with -respect to several other large trees up Valentine street. I would have had to cut the limbs off. In one case I would have had to cut down the body of the tree; had to cut down the whole tree.” This should be read in connection with his testimony indicating his appreciation of his rights and his intention to exercise them: “I would have a right to trim them or bend them or handle them in such a way as the con*601tractor with his' skill and the architect with his knowledge would indicate would have to be done. I understood absolutely that that permit gave me a right, if necessary, to remove any branches or trees to the extent that it was necessary for me to have my house pass through the avenues of the city. No matter whether it did damage to the trees or destroyed them or injured the property owners’ property I had a right under that permit to move my house through the avenues of the city. It was acting upon that theory and upon that belief that I insisted on-moving my house through Sixth avenue and Valentine street after the permit was given.” While the house was moving fifty feet, several limbs were cut and bent. The evidence shows substantial injury to trees during the use of the permit; it proves prospective injury to and destruction of trees in North Sixth avenue, and evidence tending to prove a similar injury to trees in Valentine street was rejected. The learned trial justice submitted to the jury whether, to the time of the revocation of the license, the plaintiff had made improper use of the permit. The jury-was allowed to consider only his conduct past and present in relation to trees that he met on the way or was encountering when he was stopped. The verdict would acquit the plaintiff of misconduct, notwithstanding the proof of the mutilation of trees. But if the verdict he regarded as justified, it also makes certain that the continuance of the undertaking would have entailed an impairment and destruction of trees not contemplated by the permit, and how great the stripping or demolition- would have been on Valentine street does not appear, hut should. Hence, the defendant’s officers were within their duty in interrupting the destruction menaced. The plaintiff asserts that what he had done measured his culpability, and not what his future progress demanded and what he intended.. The completion of his enterprise entailed serious injury to the trees. His present claims of right to inflict it indicate his intention to do it. In reliance upon *Hinman*v. *Clarke*(121 App. Div. 105) plaintiff considers that power to revoke the permit should be tested by his conduct in the use of it, excluding a proposed use of it. But there was no suggestion in that case that a municipality *602must await the destruction of trees .before revoking a permit to do an act that was conditioned that such destruction should be avoided, A “proposed improper or unwarranted use of the streets” is mentioned in the opinion. The 'plaintiff’s-conduct during the- fifty feet of travel indicated his capacity for harm, and his frank avowal of prospective'injury, which’ is in accord with the defendant’s evidence, establishes what would befall .the trees during the remaining sixteen hundred feet of the journey. A person wrongfully purposing the. cutting of trees is enjoined before and not after its execution. A license revoked before and not after trees mutilated ! and felled is in the public interest and in the course of legal duty. But the plaintiff insists that his right of way was paramount, and that he could clear from his path such obstacles as trees. He was required to give a bond conditioned that he would not injure the trees. This bond-does not indicate that he could injure the trees upon the condition of paying for them. It assumed that such injury was beyond his right, and made provision for indemnifying should he do what was forbidden. The ordinance of the city (Chap. 12, § 3) provides:. “No person, persons, telephone, telegraph, messenger, or other company or corporation, shall, without the written consent of the owner and the mayor, cut or mar any of the trees, or branches thereof, in this city for any reason or purpose.whatever.” Subdivision 46 of section 166 of the defendant’s charter (Laws of 1892, chap. 182) provides that -its common council, except’ as otherwise provided by law, shall have power “ To direct the regulating and planting of shade and ornamental trees along the streets and sidewalks in said city, and to prevent' the injury and defacement of such trees, and of fences, walls, posts and buildings in said city. ” The ordinance relating to the trees had the force of law. It constrained alike the plaintiff and the common council. • The .plaintiff knew; that the moving of the house through, the streets involved injury to the trees; the width, of the house exceeded the space between certain of the . trees, and its height plainly showed what harm it would inflict • on the branches.' If the city should have investigated and ■ ascertained that the removal could not be done without breach of the ordinance, its failure to obtain the information and act *603upon it does not shift to it the entire fault, and'leave the plaintiff free to recover damages for a culpability which he shared. "While the plaintiff, under reasonable restriction to respect the safety of the street and its incidents, was entitled to move his house, his contention that interrupting shade trees along the way must fall before him, or their limbs be cut off for thirty feet in height, to permit his passage, presents a claim to superior right of way to which assent is not given. As far as plaintiff had gone he had 'done unjustified harm, and in the longer space before him there were trees that he intended to sacrifice to his purpose. Hence the authorities properly stopped him.

The judgment should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Carr, Woodward and Rich, JJ., concurred.

judgment and order reversed and new trial granted, costs to abide the event.