New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-12-14
A NUISANCE HAS NO RIGHTS.
THE WIRES SHOULD HAVE COME DOWN
LONG AGO.
THE INJUNCTION OF JUDGE ANDREWS DID
soLvED-MR GILROY TO TAKE HIS
AXE IN HAND AT ONCE.


Court yesterday handed down an opinion in the
electric light case, reversing the opinion of Judge
Andrews and dissolvng the injunction obtained by
the United States Illuminating Colapany, the
Brush Electric Lighting Company and the Mount
Morris Electric Lighting Company, which restrained
the Mayor, the Board OF Electrical Control and
the Commissioner of Public Works from inter-
fering with the property OF the plaintiffs. Each
of the three judges has written opinion, differ
ing in unimportant details, but concurring in the
decision that the judgment of Judge Andrews
should be reversed.
Judge Van Brunt holds that it has been assumed
that the companies have right TO continue and
maintain overhead wires until the subways should
be ready, provided such wires were maintained
in such m9nner as not TO be dangerous TO human
life; and that they have right when such wires
become out of repair 10 repair the same, subject
TO the reasonable regulations of The Board OF
Electrical Control and that it is tie duty Of that
Board, if necessary, to give the plaintiffs per-
mission to do so. 1t would also appear upon the
assumption that the Commissioner of Public Works
derived his authority to act from the Board OF
Electrical Control and the Mayor, and that the
action of the Commissioner should not be con-
trolled by the opinion of the expert Of the Board
of Electrical Control that the Board had no power
to compel the discontlnuance OF the wires until
the expert certified that such wires were not In
safe and proper condition, and that the decision OF
the expert as TO the want of safety of the wires
would not necessarily Justify the action of the
Commissioner But the court holds that the Com
missioner had right, both as a private citizen
and by virtue of his office, to remove the obstruc-
tons which had become dangerous, without notice
to the plaintiffs; and therefore the in JUNCTION
which was granted was entirely too broad in re-
straining all action upon the part of the Commls-
sioner of Public Works until the companies
should have an opportunity to remedy the defects
pointed But by him.
MORE AUTHORITY THAN WAS EXERCISED.
A good deal has been said,7 Judge Van Brunt
continues, concerning the power vested in an
other department OF the City Government for re-
moving nuisances which have become dangerous
to life. 1t may he true that the Board Of Health,
under the peculiar phraseoOgy of the act confer
ring power upon it, would have a right TO remove
these wires because dangerous to human life.
But its power was not exclusive. The Department
Of Public Works had right Also and 1t was its
duty TO keep the streets of the city of New-York
in passable condition and TO remove all obstruc-
tions which nterfered with their use, and there
fore it had ample authority TO abate this nuisance.
If this is not So will a conrt of equity intervene
ance by the public authorities, simply because the
proper department Is not acting? Jhc court
thinks not The nuisance existing, the court will
not limit its abatement to any particular officer
of the municipality unless the exclusive power is
plainly conferred upon one department. Even
then the right of an officer Of the municipality TO
act as n private citizen in perfectly clear case
would not be affected.
Counsel for the companies, while apparently
conceding the right of the Commissioner of Public
Works to remove an mperfectly insulated wire.
urge that the right of removal must in the first
place depend upon a determination by the Com.
missioner Of the condition Of the fixture, and this
he has no right arbitrarily to determine without
notice and without affording the plaintiff an OPP
portunty to be heard, and if the pole wire
is defective or unsafe it should not be removed
or the nuisance abated without granting to the
plaintiff opportunity to remedy the alleged
defect That the Commissioner should not act
arbitrarily without determination as to the con-
dtion and existence of the nuisance is undOubt-
edly correct. But where party erects and MAIN
tans knowingly pablic nuisance in the streets
of New-Yorll necessarily dangerous to human life
the court knows of no rule of law which requires
the public authorities, the public, TO abandon
the streets until the party maintaining the nuisance
shall have an opportunity to be heard as 10 its
existence, and after such having an opportunity to
remove the same.
The counsel in that proposition seem to over
look the important fact that it is because of the
gross negligence of the plaintiff that these wires
were allowed 10 become public nuisance, they
are conceded to have been at the time of the
commencement of this action. The plaintiffs bave
been guilty of wilfu violation of manifest duty
in, allo those N hpPOmp
They are without excuse. and when they claim
that the destruction of these instruments of death.
maintained by them in violation of every duty
and obligation which they 10 the public. is
an invasion OF their rights of property such claims
seem to proceed upon the assumption
that nothing has right TO exist
except themselves. 1t is idle to say
that a party knowingly maintaining a nuisance
which may at any time deal death to innocenb
passers-by can for an instant be entitled TO the
protection Of the law in its maintenance. II
these plaintiffs had been without fault dilerent
question might have been presented But it is
evident that they were guilty of the highest
degree of negligence The Commissioner had
authority both as a private citizen and as
public official, charged by the duties of his office
with the removal of distractions from the streets
of the city, TO abate the nuisance mplained OF.
Some of the afidavitS contained in the record
appear TO claim that the Commissioner of Public
Works, although not acting wantonly in his
attempts TO abate the existing nuisance yee
either had removed or threatened 10 remove before
the hearing of the motion in the court below Ger.
tain wires which were not in defective con-
dition. The court has not deemed il necessary
TO advert to those claims, because the complaint
as filed contains no averments under which PROOF
of such facts would be admissible, and as the
relief granted must depend upon the allegations
of the complaint, no such question is presen.sso .s
for consideration 1t follows, therefore. that tne
order appealed from should be reversed Win
$40 costs and disbursements.
OPINIONS OF THE OTHER JUDGES
Judge Brady writes short OPINION anu Sys
that he concurs with his brethren and that no
ro~rots ,hat his duties in the oyer and Terminer
IcSIc'o lh"o NO ,bat he was unable 10