The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-07-25
SHEDS OVER SIDEWALKS.

Their CONSTRUCTION Declared Illegal
Permission by the Corporation for
Their Erection without Authority OF
Law-Imp0rtant Decision by Judge
Mcneil.
As Is well known, the first thing q man does
when he opens grocery store-and it is also so In
many other branches Of trade, though more par.
ticularly with grocery st0res-is to erect wooden
shed in front Of the premises and then occupy
or less of the sidewalks with his wares and mer.
Chandtse. The legality Of these erections has just
been made test question in the Courts In the
case In point Mr.. John T. Trevor leased for nine
years the lower story Of the building on the south.
east corner OF Sixth avenue and FOrty-eighth
street to James S. Jackson. The building is five
stories in height and the upper portion let out as
SEATS" Mr.. Jackson commenced putting up a
wooden awning fronting his store, to which the
lessee objected Mr.. Jackson had procured the
proper permit from the Corporation, and. thinking
ne was entitled to go on with the erection Of the
shed, proceeded with the work, and this notwith-
standing q covenant in the lease that he would
make no alteration in the building without the
consent OF the lessee. He claimed, however, that
this was no violation OF this covenant and that the
permission he had received from the Superinten-
dent OF Encumbrances fully authorized him TO 60 on
with the work. Having no other recourse, Mr..
Trevor applied to Judge Mcneil, Of the Superior
Court, for q temporary Injunction enjoin-
ing him to discontinue the same. With
1ion should not be made permanent.
argument, and Judge Mcneil yesterday rendered
his decision. This decision Is embodied In very
ag w wee sye Below II viii be seem that he
decides that these structures are without any
authority OF law, that they cannot be legalized by
the Legislature, that no one has right to occupy
the public streets Tor private purpose and that
tho long continued practice In this regard does
not give it the sanction OF law.
JUDGE MoNELL's OPINION.
After recting the facts OF the case and defining
the statutes applicable to the same the opinion
use OF a public street for private purposes. In
city is for an exclusively private purpose;
derive the benefit and advantage from the stru &c
ture He says 1t Is needed to protect the goods IN
appear that he does not intend to also use the side.
walk beneath 1T as mart for the exhibition and
sale OF his goods 1t cannot, therefore, be claimed
that such OF the street Is not inconsistent with
the pub use Of the street. or that 1t Is Tor pub
lie purpose. The Corporation. holding the streets
in trust for the pubic, have exceeded their pow
ers in attempting authorize such appropriation,
and tie erection and continuance OF the structure
complained OF is in my Judgment without authority
OF law Any use OF public Street incompatible with
the pubic use, II unauthorized by law, whatever
may be its degree, is public nuisance. An appro-
without grant is public nuisance. (iioyt vs.
Mayor &C.. Wend, 57l.l SO continued en-
croachment upon street, though for the purpose
Of carrying on lawful business, is unjustifable.
Ii Is not necessary that 1t should be hurt
ful to the health or noxiou5 to the senses
1t has been urged that an authority in the Corpora
ton can be found in It's long and very frequent
exercise OF the power in different parts OF the CITY,
But judicially cannot admit the force Of this. If
the Corporation has not the power the assumption
OF it in any, number of instances will
not create such power 1t must be found
to exist outside OF its own practices
and Drecedents NV examination
Of The questions upon this motion has led to the
conclusion that the permission granted by the
Corporation OF New York to erect shed or awning
upon OF the public streets Of the city is not and
was not authorized by law; that, being erected in
such place, without sanction Of law, 1t Is public
nuisance, and, as such, being INJURIOUS to the pri-
vs.e interests OF the plaintiff. he Is entitled to a
continuance OF the injunction. The fear expressed
Dy the defendants counsel that a decision adverse
TO the defendant might disturb a very large num-
Der or similar structures, even II 1t was well
grounded. could not influence the decision in this
case; out DC not think that there Is much ground
for IL,