Hotel Astor v. City of New York

Scott, J. (dissenting): By this action the plaintiff as lessee and operator of a large hotel in the city of New York calls in question the validity of an ordinance recently adopted by the board of aldermen of the city of New York authorizing the establishment of public hack stands in the city of New York. The general authority of the municipality to regulate hacks and haekmen and to establish hack stands is not questioned. Plaintiff, however, insists that the ordinance in question is not only unreasonable as to it, but actually invades and impairs its property rights as an abutting owner upon a public street. The particular provision of the ordinance to which the plaintiff objects reads as follows: “Article 5. * * * The Mayor is hereby authorized to locate and designate as public hack stands 889 the space alongside the curd adjacent to property used as public parks, public buildings, railroad stations, steamship and ferry landings, hotels, restaurants, theatres and the center of any street or avenue where the roadway, exclusive of the sidewalk is 30 feet in width or more.” This provision is intended to supersede a prior ordinance which has been in operation for many years, by which the mayor was authorized to designate what were known as special hack stands in front of hotels “where there is necessity therefor” and 11 with the approval and consent of the persons occupying the premises." As to the necessity for the consent of the person occupying the premises it was said in City of New York v. Reesing (38 Misc. Rep. 139; affd., 77 App. Div. 417): “Assent of an interested party to such a disposition of his right to the street, as was made in this instance, is required in order to prevent any interference with the rights of owners and lessees to the street in front of their premises on the part of the municipality.” The practical difference between the former ordinance and the present is this: that under the former ordinance the hotel proprietor was able to exercise supervision and discipline over the cab stands in front of his hotel; he could see to it that only proper cabs stood there and only respectable drivers were employed,-and that the existence of the cab rank should not interfere with carrying on the business of the hotel, while under the present ordinance the cab stand will be open to any licensed hack whose driver will choose to come there, and the proprietor of the hotel will be able to exercise no control or supervision whatever over either the cabs or their drivers. It is easy to see how a proprietor who was willing to have had a special hack stand in front of his hotel might well object to having a public hack stand established there. It may safely be assumed that, at least in front of the larger hotels, the cab stands will be kept permanently filled up with waiting cabs, a new one moving up to take the place of each one that leaves the stand. The practical effect of the ordinance will, therefore, be to keep standing in front of each hotel, without the consent of and against the will of the proprietor, a permanent line of hacks awaiting and soliciting customers. In my opinion this would constitute an invasion of the abutter’s property rights which the law will not tolerate. As was well said by the learned justice from whose order this appeal is taken: “ The abutting owner has rights special and peculiar to himself which arise out of the relation of his property to the public street. His right of way and his right to the free and unimpeded ingress and egress to and from his property, and to the easements appurtenant thereto are clearly recognized by controlling legal authorities. [Citing authorities.] A legislative act or municipal ordinance which substantially interferes with this right violates the property right of the abutting owner, whether the fee of the street is owned by the abutting owner or the public. [Donovan v. Pennsylvania Co., 199 U. S. 279, 302; Story v. New York El. R. R. Co., 90 N. Y. 122.] ” The rule thus enunciated is too well known and too firmly established in this State to require further citation of authorities. The court, however, fell into error, as I conceive, by regarding the rights of the abutting owner as confined to the right of ingress and egress, and, so considering, found that the space of thirty feet provided by the ordinance to be kept 890 clear in front of the door of an hotel fully satisfied whatever rights the abutter had in the street. In my opinion the abutter’s rights go much further and extend to the right to insist that the street in front of his premises be kept clear of all permanent obstructions such as a public cab stand would amount to. The point is well illustrated in the opinion of Judge Danforth in the Story case. It had been decided in People v. Kerr (27 N. Y. 188) and Kellinger v. Forty-second Street, etc., R. R. Co. (50 id. 306) that the construction of a street railroad in a public street, without a change of grade, constituted a legitimate use of the street, when done with legislative authority. In commenting upon the Kerr case Judge Danforth, writing in the Story case, suggests that while that case upheld the construction of a surface railway upon which cars were to pass and repass, it would probably have led to a different conclusion if the question had been presented of a siding or switch which the railway company used to keep its cars for storage. So while an abutting owner can find no valid objections to a law or ordinance which permits public hacks to pass to and fro along the public street he may well object to an ordinance which permits them to stand in a long row in front of his premises while awaiting customers, thus interfering not alone with his access but also with his easements of light and ah. As was said in Rex v. Cross (3 Camp. 224), quoted in Callanan v. Gilman (107 N. Y. 360): “ Every unauthorized obstruction of ahighway to the annoyance of the King’s subjects is an indictable offense. * * * The king’s highway is not to be used as a stable yard.” Without pursuing the subject further, I am of the opinion that, upon the clearest principles, the establishment of a public hack stand adjacent to the curb in front of private premises, without the consent of the abutter, is an invasion of his private rights in the street which the law will not countenance. Nor do I stop to discuss the further question whether a clear space of thirty feet in front of the door of a large hotel is a reasonable provision for access and ingress. On that subject there may be some doubt. Apart from that question, however, and solely upon the proposition that the ordinance constitutes an infraction of plaintiff’s rights of property, I think that the order appealed from should be reversed and the motion to continue the injunction pendente lite granted.