Opinion
June, 1916.
Henry E. Heistad, for plaintiff.
Lamar Hardy, corporation counsel (Edward A. Freshman, of counsel), for defendant borough president.
George W. Titcomb, for intervening defendants.
Pending the trial of the action, the plaintiff seeks to enjoin the borough president from issuing a permit for the removal of two frame houses now located on Avenue H in the borough of Brooklyn to any other place. The relief sought upon this motion is identical with that demanded in the complaint. Plaintiff does not claim that the borough president is without power to grant the permit or that it would be illegal if he did so. Nor does the plaintiff allege any fraud or bad faith, or anything approaching fraud or bad faith, in connection with the borough president's duties concerning the permit in question. The complaint, like this motion, is predicated solely upon the claim that if the permit is granted the trees and shrubs of the parking in the center of Avenue H, for the distance of a block and a half (the distance the houses would be moved along that avenue), would be destroyed. Plaintiff claims that he and other property owners in the neighborhood would be injured and their property depreciated in value.
The action is not a taxpayer's action, but is brought by the plaintiff in his capacity as an abutting owner. If the intervening defendants or others sought to destroy the trees or shrubs of the parkings in question without the authority of the city, the plaintiff without question could have redress, either by enjoining the threatened acts or in an action for damages if they had taken place. Lane v. Lamke, 53 A.D. 395; Donahue v. Keystone Gas Co., 181 N.Y. 313. And those are the authorities upon which the plaintiff relies, but they do not support his contention here made, for he now seeks to prevent a public official from granting a permit which concededly he has the power to issue (Greater New York Charter, § 383), and which it may well be his duty to issue. N.Y. Code, chap. 23, art. 13, § 144 of Ordinance; Western N.Y. Penn. T. Co. v. Stillman, 143 A.D. 717, 718.
The very authorities relied upon by the plaintiff recognize that the city officials could do the act which a third party could be enjoined from doing, and that the plaintiff has no redress where the act is done pursuant to proper authority. In Lane v. Lamke, 53 A.D. 395, 397, the court said: "It is not denied that an adjacent owner may recover in trespass against one who without official authority destroys shade trees in a street in front of his premises." And in Donahue v. Keystone Gas Co., 181 N.Y. 313, 317, the court said: "It is to be observed that we are not dealing with a question arising between an abutting owner and the city authorities, for in such a case the rights of the latter are paramount, so long as the road is kept open and unobstructed. * * * It is not the question which might have arisen when the defendant many years ago laid its pipes in the street, if it had been then necessary to cut the trees which are the subject of this action in order to do the work properly and they had been cut for that purpose with the approval of the city authorities. * * * [p. 320]. So long as a hitching post or a shade tree is physically and legally a part of the street, he (the abutting owner) is entitled to all the special benefits which flow therefrom to his lot, free from interference by a wrongdoer, but subject to removal by the municipal government. * * * As they (abutter's rights) are dependent upon the street and cannot exist without it, they are a part of it and thus become `an integral part of the estate' of the abutting owner, subject to interference by no one except the representatives of the public."
As concededly the borough president has the power to issue the permit and as the right to move buildings through the streets of the city is clearly recognized by the Code of Ordinances, there seems to be no basis for plaintiff's contention that the borough president should be enjoined. The rule is that public officials cannot be enjoined from performing their official duties, unless the acts threatened by them would be without authority or in violation of law. People v. New York Canal Board, 55 N.Y. 390, 393; Davis v. American Soc., 75 id. 362, 369; People ex rel. Negus v. Dwyer, 90 id. 402, 409; Wright v. Shanahan, 149 id. 495, 502.
Even if this were a taxpayer's action, it would not lie, for not only is there no claim that the act of the borough president would be illegal but there is no claim of any fraud or corruption or wrongdoing. Without such allegation and proof, there is no basis for a taxpayer's action. Talcott v. City of Buffalo, 125 N.Y. 280, 288; Rogers v. O'Brien, 153 id. 357; Sheehy v. McMillan, 26 A.D. 140, 143.
The plaintiff would seem to be without remedy, even if the results of moving the houses should be as unfortunate and as lasting as he claims. But it is reassuring to find in defendant's papers the affidavit of a competent landscape gardener, who states he has carefully examined the location and that it would be necessary to remove only a few of the trees and larger shrubs, and that those so removed can be replaced without injury, if the work is done by a competent person. It is true plaintiff's papers contain the opposite contention and it might be difficult for the court, were it necessary so to do, to decide this question, unless the court's personal experience could be considered.
The borough president sets forth fully the terms upon which the permit will be issued. This will require the houses to be moved over the parking in question at an elevation of at least three feet and that nothing shall be permitted to rest upon the parking, that the trees plants and shrubs which might be injured must first be removed, under the supervision of a competent gardener to be named in the permit, and be replaced immediately after the passage of the houses, and that all damage done shall be immediately repaired and the street and strip of parking restored to their original condition. To secure this, a bond in a proper amount will be required. There seems to be no real ground for apprehension of permanent impairment of the beauty of the street. The borough president has it in his power to attach any reasonable conditions to the issuance of the permit, so the integrity and beauty of the highway need not be affected except temporarily. That such conditions will be imposed so as to make this result sure seems to be established by the borough president's affidavit. While the legal question may not be affected and while the plaintiff might be without remedy even if such conditions were not imposed, it is gratifying to know that there will be no lasting or permanent disfigurement or lessening of beauty of the parkings in question.
Avenue H in that section is a beautiful thoroughfare, as the photographs show and as the court personally knows. It would be regrettable if its beauty were to be lastingly lessened. There seems to be no reasonable fear of such an unfortunate result. But even if there were, the power to issue the permit exists and the borough president could not be enjoined, for any reasons stated in the motion papers, from exercising his power.
The motion must be denied.
Motion denied.