The daily gazette., 1883-10-06
CouRT OF cHANCrRY.
Continuation of the Arguments In the Bay
Window Suit.

M. Whitlord, Manager and Treasurer of the
Every Evening Publishing Company,
against Samuel II. Bayr ard was continued
before Chapcellor Salisbury yesterday from
10 o'clock until 3 o'clock in the afternoon
without interruption, the proceedings OF
which were published in the GAZETTE up to
l.30 O'Clock, when Mr.. Spruance, counsel
for Mr.. Baynard, was still speaking. He
made a strong argument against the grant
Ing oi an injunction, as It would be a mani
fest injustice to the defendant; and also
held that If 1t were granted, and equaA JUS
tice meted out, hundreds OF others having
bulk windows in the city would be sub.
ieeted to the same Inconvenience. He also
made tho point that the bill complained OF
The erection of walls, and that there were
no affi !avits to support the allegation which
was not true. The bill was not compli-
ment to the candor of the drawer of the
paper. 1t was argued that 1t was absurd to
assert that the three feet projection on Fifth
street and IL inch projection ON Market
street were obstructions, when near them
were area-ways projecting out four feet.
The question was whether Baynard's win
dows obstructed the passage. There were
and that Mr.. Thomas himself had
violated the law by building up
solidly from the sidewalk, 1t was
claimed that City Council had no power TO
give anyone the use of the street by ordi-
nance and that the public had the right of
the street from building line to building
line, thus declaring existing ordinances void.
What was to become of the bulk and bay
windows, steps, area ways erected? G. F.
Rudolph had bulk window standing three
feet out, built up from the pavement, on
Market street, which had never been
thought nuisance, for there were four feet
projections above and below. 1t was the
public that was to be protected and not the
Every Evening Publishing Company and
Mr.. Thomas because their buildings were
dwarfed and over-shadowed by Mr.. Bay
nard's new structure. The ease of the
ChancelloI's refusal to grant an injunction
In the case of the Harlan and HollingsworUh
Company against s. d. Paschall was cited
as were the permissions to erect awning
posts, signs, &c. The material of the re-
spectiye afiidavits was reviewed, and mo-
ton to strike out those of Mr..
Thomas and Mr.. Whitford as irrelevant; but
the Chancellor ruled that they should stand
for what they were worth. The cases cited
by the plaintiff were gone over, and the
speaker averred that no case In the lot was
parallel to the one now pending, and that a
Court in Equity should not and would not
interfere If the injury was not "great, GER
tain and irreparable," The proper course
was to proceed by Indictment, when the
proper judgment, If found to be a public
nuisance, would be to order it abated and
impose fine. The remedy by indictment
was so efflcacious that a Court of equity
would interfere with great reluctance Mr..
Spruance affirmed that the building had
been erected in good faith and in no spirit of
defiance, though his client stood firmly on
his rights, and that temporary injunction
would work him irreparable injury, while
the public could suffer no Inconvenience or
lo6s by requiring the proceeding to be by in
dictment. -.--- .sas4-a..,-
The decision of the late Chief Justice
Sharswood to the effect that a prr lection OF
ornamental work, pillars, etc., of Is inch es
beyond the building line on Chestnut street
In Philadelphia was not a nuisance, and his
ruling that "Courts in equity are not insti-
tuted to enforce absolute legal rights, !" were
mentioned. Technical distractions are not
necessarily real and every case must be de-
eided on its own peculiar circumstances 1t
was argued that City Council had the same
right to authorize Baynard to erect those
bay windows in spite of the general ordi-
nance to the contrary that 1t had to grant
special permission to erect frame BUILD
ing contrary to the general ordinance, and
quoted the permission given to Archibald
Given to erect whole row OF houses with
bay windows four feet out.
AT o'clock the case was postponed until
O'Clock this morning wheu Mr.. Bates, one
of the counsel for the plaintiffs, began his
argument in favor of granting the iIjunc
tion during the course of which the speaker
said that where there is an admitted inten-
tion to encroach upon the public highways,
court of equity should interfere without
n al Of foI avid nha f-oy
of the answer is an admittance of having
built bay window three feet from the
building line, and as an excuse for this en-
croaehment they offer an ordinance of the
City Council permitting Samuel H. Bay
nard to do this thing and
suspendiDg the general ordi-
nance already passed. There can be
but two simple questions, Is the ordinance
valid license, and secondly can a public
nuisance be legalized by an ordinance OF
Council. The Chancellor here stated that
there was no question asto Councils right
to legalize nuisance as that was impossi-
Bile. The question at issue was, sis the bay
windows of the building in question public
nuisance"
The fact of the windows being out side the
building line was not question of measur-
ment but an encroachment of any kind is
public nuisance without authorized law.
Mr.. Spruance said ''if that is the case
every door jam, window frame and
bulk window, including those of the
Every Evening Building on Shipley
street were illegal and could be taken down.
Bates admitted this fact and expressed
thanks that his dwelling was built back from
the line.
Mr.. Bates further said that II Baynard is
allowed to build his building as he proposes
you cannot stop every man who has build
ing on the corner from appropriating the
feet of the public highway for his private
use. If every man who has or buys a cor
ner store can buy three feet less oiland than
he requires and then take three feet of the
public property and build a string of bay
windows and asserted that is what It
would come to If Baynard was
allowed to proceed with his building.
The speaker frequently referred the discis
sions rendered in similar cases by Judge
Dillon, and held that the public streets were
for the general public, and that any en-
croachment upon them by private parties
was of vital Importance, as it affected both
the local and general public.
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LOCAL LACONICS.