Opinion
April, 1904.
Present — Van Brunt, P.J., Patterson, O'Brien, McLaughlin and Laughlin, JJ.
Judgment modified by affirming it as to Odells, with costs of appeal against them; and reversing it as to Rectors, and ordering a new trial as to them, with costs to Rectors, appellants, to abide event.
The facts, so far as they are necessary to understand the questions involved, are sufficiently stated in our opinion upon the former appeal from the order granting the injunction pendente lite. ( Odell v. Bretney, 62 App. Div. 595.) There are two parties plaintiff, one, Rectors, a domestic corporation, and the other S.C. Odell Son, who, under a license from the city, were maintaining a private hack stand in front of the hotel or restaurant conducted by Rectors. The defendants represent the Public Owners and Hackdrivers' Association of the city. The Rectors hotel premises are situate on the east side of Broadway between Forty-third and Forty-fourth streets. At Forty-third street Broadway makes a junction with Seventh avenue, and within the space between Forty-third and Forty-fourth streets there is a public hack stand authorized to be used by the defendants and there is a license for such use issued by the city of New York. Our conclusion upon the former appeal was that the Special Term was right in the view that the space immediately in front of Rectors Hotel was not within the boundaries of the public hack stand. It was left to be determined upon the trial whether the use of the street in front of Rectors as a private hack stand was one which the city had authority to grant. Upon the former appeal it was shown that S.C. Odell Son claimed such use of that portion of the street in front of Rectors pursuant to a special license issued by the city which, in terms, authorized them to maintain a private hack stand at that place. Upon the trial in May, 1902, it appeared that the Odells' special stand license had expired, and that they did not at that time nor had they for some previous period maintained such hack stand. Upon this showing, therefore, as the Odells had no right to injunctive relief as against the defendants at the time of the trial, the dismissal of the complaint as to them was right, but, under the circumstances, it should have been without costs. We think, however, that it was error to dismiss the complaint with costs as against Rectors. The street immediately in front of this hotel, we held, was not part of the public hack stand, and using it for such purposes and to the injury and annoyance of Rectors and its guests was an invasion of its rights as the owner of the premises in the use of the street. Our former determination, therefore, from which upon examination we find no reason to depart, favors the view that, as against the acts of the defendants complained of, Rectors was entitled to relief, and hence the complaint as to them should not have been dismissed. The judgment accordingly should be modified by affirming it as to Odells, with costs of appeal against them; and reversing it as to Rectors, and ordering a new trial as to them, with costs to Rectors, appellants, to abide the event.