Patterson, J. :
The court dismissed the complaint in this action on the merits, and directed judgment for the defendant on a counterclaim, and this appeal is from that judgment. The action was brought to com[345]*345pel specific performance of a contract for the exchange of real estate situate in the city of New York. At the time fixed in the contract for its performance, the plaintiff appeared at the place designated for that purpose, and tendered to the defendant a deed of the premises to be conveyed by him to her. The deed was not accepted, and the defendant refused to consummate the transaction on the alleged ground that the plaintiff was unable to convey a marketable title to his property mentioned in the contract. The only question passed upon by the court below was that of the marketability of the title, as affected by certain alleged encroachments of the buildings upon the plaintiff’s land on the public highway. Another objection not relating to encroachments was urged, but not passed upon, and it referred to a mortgage upon the premises and a misstatement in the contract of the time at which that mortgage would fall due; but that objection was cured at the trial, and does not seem to be insisted upon, and certainly is of no consequence now. The property which the plaintiff contracted to convey to the defendant consisted of two houses and lots, known as Nos. 400 West One Hundred and Forty-ninth street, and 773 St. Nicholas avenue; the first-mentioned lot forms the southerly corner of One Hundred and Forty-ninth street and St. Nicholas avenue, and the second lot immediately adjoins it on St. Nicholas avenue. One of the objections relating to encroachments upon the highway was, that the wall of the house at the corner of One Hundred and Forty-ninth street and St. Nicholas avenue encroaches one inch upon the street line of One Hundred and Forty-ninth street. That objection is not referred to in the decision of the court below, and was clearly insufficient to condemn the plaintiff’s title as unmarketable. It was not established by a preponderance of evidence, as a fact in the case, that there was such an encroachment. The evidence of the surveyors upon that subject creates such a conflict that it cannot be said that the fact was established. The remaining objections were, that the bay windows of each of the houses erected on the two lots encroached upon the street line of St. Nicholas avenue seven and one-half inches, more or less, and that the stoop of No. 400 West One Hundred and Forty-ninth street encroached upon the street line of One Hundred and Forty-ninth street some[346]*346thing over six feet. The existence of these hay windows and the projection thereof over the street or building line, and of the stoop or portico, as it is called, extending between six and seven feet beyond the street line of One Hundred and Forty-ninth street is admitted.
In the decision of the court below it is stated as the ground of the judgment directed to be entered that the easterly wall of each of said buildings has been unlawfully erected partly upon St. Nicholas avenue and unlawfully occupies a portion of St. Nicholas avenue, and that said walls project into and encroach upon said avenue to the extent of seven and one-half inches; that the buildings erected upon the plaintiff’s land are a material part of said real estate, and that by reason of said encroachments upon said St. Nicholas avenue the owner of said buildings is and will be liable to be compelled to remove the said encroaching walls; that by reason of said liability the plaintiff’s title to said lands and buildings is incumbered and is not good and marketable; that by reason of said encroachments the plaintiff was not at any time since the making of the contract alleged in the complaint and is not able to perform said contract on his part, and has not been able and is not able to convey a good and marketable title in fee simple to said lands and buildings, and that the plaintiff is not entitled to the performance of the contract. Thus the question before the court below and now to be considered by us relates to bay windows, such as those pertaining to the plaintiff’s houses, and which project beyond the street line, being lawful structures, and to the right to build or maintain stoops to houses beyond that street or building line. It is evident that this is a question that can arise only between the municipal authorities and the owner of a building fronting on a public street (Adler v. Met. Elev. R. Co., 138 N. Y. 173; Griffith v. McCullum, 46 Barb. 561), for the so-called obstructions are not of such a character.as to constitute a public nuisance affecting a private right. In view of the ordinances of the common council of the city of New York and of the acquiescence of the authorities of the city in the allowance of constructions such as those connected with the plaintiff’s houses, the possibility of the owner ever being molested is so exceedingly remote that the objections become technical only and not substantial.
Prima faoie, any obstruction in a highway is unlawful; but it is [347]*347urged by the plaintiff that these constructions are lawful for various reasons ; and,first, because they are built pursuant to a usage which has existed in the city of New York'for many years, and that there are thousands, and, perhaps, tens of thousands of. stoops and bay windows and area openings and coal chutes and cellar doors and other appurtenances to houses fronting on city highways, which have been allowed to exist in the public streets beyond the building line. But no sanction can be given to a violation of the law by the placing of particular obstructions or nuisances in city streets because things of a like character have merely been tolerated in other localities by the city authorities. The only part that usage can play in the decision of a case of this character is to show assent in individual instances, and also to show a situation with reference to the use of the public streets for the ease of buildings fronting upon them ; in view of which situation, it may be assumed that legislation upon that subject has been enacted.
It is also urged by the plaintiff that an express permission to build the houses in question with the bay windows, constructed as they are, was given to the plaintiff by the commissioners of public parks of the city of New York, and that St. Nicholas avenue, at the point at which these houses are erected, was under the jurisdiction of the park commissioners. If that be so, it ends the whole contest with reference to the bay windows, for it was expressly decided by the Court of Appeals in the case of Wormser v. Brown (149 N. Y. 163) that the commissioners of public parks are invested with full authority to allow the construction of bay windows on any street within 350 feet of the boundary line of any park or public place under their jurisdiction. It is shown in this case that the property in question on St. Nicholas avenue is within 350 feet of the westerly end of a certain tract of land which the commissioners of public parks may take for a projected Colonial park; and it is declared by the act authorizing that park that so much of a certain designated area of land as may be taken by the commissioners for it is a public park. (Laws of 1894, chap. 56.) We do not think it can be said, however, that the westerly side of St. Nicholas avenue was, at the time the contract was made between these parties, or is at the present time, within the jurisdiction of the commissioners of public parks. The park has not been laid out; its area has not [348]
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Patterson, J. :
The court dismissed the complaint in this action on the merits, and directed judgment for the defendant on a counterclaim, and this appeal is from that judgment. The action was brought to com[345]*345pel specific performance of a contract for the exchange of real estate situate in the city of New York. At the time fixed in the contract for its performance, the plaintiff appeared at the place designated for that purpose, and tendered to the defendant a deed of the premises to be conveyed by him to her. The deed was not accepted, and the defendant refused to consummate the transaction on the alleged ground that the plaintiff was unable to convey a marketable title to his property mentioned in the contract. The only question passed upon by the court below was that of the marketability of the title, as affected by certain alleged encroachments of the buildings upon the plaintiff’s land on the public highway. Another objection not relating to encroachments was urged, but not passed upon, and it referred to a mortgage upon the premises and a misstatement in the contract of the time at which that mortgage would fall due; but that objection was cured at the trial, and does not seem to be insisted upon, and certainly is of no consequence now. The property which the plaintiff contracted to convey to the defendant consisted of two houses and lots, known as Nos. 400 West One Hundred and Forty-ninth street, and 773 St. Nicholas avenue; the first-mentioned lot forms the southerly corner of One Hundred and Forty-ninth street and St. Nicholas avenue, and the second lot immediately adjoins it on St. Nicholas avenue. One of the objections relating to encroachments upon the highway was, that the wall of the house at the corner of One Hundred and Forty-ninth street and St. Nicholas avenue encroaches one inch upon the street line of One Hundred and Forty-ninth street. That objection is not referred to in the decision of the court below, and was clearly insufficient to condemn the plaintiff’s title as unmarketable. It was not established by a preponderance of evidence, as a fact in the case, that there was such an encroachment. The evidence of the surveyors upon that subject creates such a conflict that it cannot be said that the fact was established. The remaining objections were, that the bay windows of each of the houses erected on the two lots encroached upon the street line of St. Nicholas avenue seven and one-half inches, more or less, and that the stoop of No. 400 West One Hundred and Forty-ninth street encroached upon the street line of One Hundred and Forty-ninth street some[346]*346thing over six feet. The existence of these hay windows and the projection thereof over the street or building line, and of the stoop or portico, as it is called, extending between six and seven feet beyond the street line of One Hundred and Forty-ninth street is admitted.
In the decision of the court below it is stated as the ground of the judgment directed to be entered that the easterly wall of each of said buildings has been unlawfully erected partly upon St. Nicholas avenue and unlawfully occupies a portion of St. Nicholas avenue, and that said walls project into and encroach upon said avenue to the extent of seven and one-half inches; that the buildings erected upon the plaintiff’s land are a material part of said real estate, and that by reason of said encroachments upon said St. Nicholas avenue the owner of said buildings is and will be liable to be compelled to remove the said encroaching walls; that by reason of said liability the plaintiff’s title to said lands and buildings is incumbered and is not good and marketable; that by reason of said encroachments the plaintiff was not at any time since the making of the contract alleged in the complaint and is not able to perform said contract on his part, and has not been able and is not able to convey a good and marketable title in fee simple to said lands and buildings, and that the plaintiff is not entitled to the performance of the contract. Thus the question before the court below and now to be considered by us relates to bay windows, such as those pertaining to the plaintiff’s houses, and which project beyond the street line, being lawful structures, and to the right to build or maintain stoops to houses beyond that street or building line. It is evident that this is a question that can arise only between the municipal authorities and the owner of a building fronting on a public street (Adler v. Met. Elev. R. Co., 138 N. Y. 173; Griffith v. McCullum, 46 Barb. 561), for the so-called obstructions are not of such a character.as to constitute a public nuisance affecting a private right. In view of the ordinances of the common council of the city of New York and of the acquiescence of the authorities of the city in the allowance of constructions such as those connected with the plaintiff’s houses, the possibility of the owner ever being molested is so exceedingly remote that the objections become technical only and not substantial.
Prima faoie, any obstruction in a highway is unlawful; but it is [347]*347urged by the plaintiff that these constructions are lawful for various reasons ; and,first, because they are built pursuant to a usage which has existed in the city of New York'for many years, and that there are thousands, and, perhaps, tens of thousands of. stoops and bay windows and area openings and coal chutes and cellar doors and other appurtenances to houses fronting on city highways, which have been allowed to exist in the public streets beyond the building line. But no sanction can be given to a violation of the law by the placing of particular obstructions or nuisances in city streets because things of a like character have merely been tolerated in other localities by the city authorities. The only part that usage can play in the decision of a case of this character is to show assent in individual instances, and also to show a situation with reference to the use of the public streets for the ease of buildings fronting upon them ; in view of which situation, it may be assumed that legislation upon that subject has been enacted.
It is also urged by the plaintiff that an express permission to build the houses in question with the bay windows, constructed as they are, was given to the plaintiff by the commissioners of public parks of the city of New York, and that St. Nicholas avenue, at the point at which these houses are erected, was under the jurisdiction of the park commissioners. If that be so, it ends the whole contest with reference to the bay windows, for it was expressly decided by the Court of Appeals in the case of Wormser v. Brown (149 N. Y. 163) that the commissioners of public parks are invested with full authority to allow the construction of bay windows on any street within 350 feet of the boundary line of any park or public place under their jurisdiction. It is shown in this case that the property in question on St. Nicholas avenue is within 350 feet of the westerly end of a certain tract of land which the commissioners of public parks may take for a projected Colonial park; and it is declared by the act authorizing that park that so much of a certain designated area of land as may be taken by the commissioners for it is a public park. (Laws of 1894, chap. 56.) We do not think it can be said, however, that the westerly side of St. Nicholas avenue was, at the time the contract was made between these parties, or is at the present time, within the jurisdiction of the commissioners of public parks. The park has not been laid out; its area has not [348]*348been defined by commisssioners appointed under the act of 1894; its boundaries are not settled, and it may be that the commissioners will not extend the line of that park so that the westerly line of St. Nicholas avenue.would be no further distant than 350 feet from the westerly line of the park, as its boundaries may be fixed hereafter. The lawfulness of these structures, therefore, does not depend upon permission derived from the commissioners of public parks.
But the right of the plaintiff to build the bay windows, and the stoop or portico, is founded in the law; for the fair inference from the statutes of the State and decisions of the courts is that it is within the poiver of the common council to pass appropriate ordinances regulating the subject of the fronts of buildings facing on public streets, and to grant permission to owners of buildings to occupy a certain space for certain purposes beyond the building line, if those constructions do not in reality interfere with the free use of those parts of the public streets to be kept clear of obstructions as public highways. Ordinances of the common council of the city of New York permit the construction of bay windows not extending beyond the house line more than one foot. The ordinance adopted May 21, 1895, allows bay windows, oriel windows or other windows, to be maintained on any building theretofore constructed, or thereafter to be constructed, and section 8 of chapter 24 of the ordinances of 1866 provides that no person or persons shall construct or continue any platform, stoop or step in any street in the city of New York, which shall extend more than one-tenth part of the width of the street, nor more than seven feet. Sections 192 and 193 of the revised ordinances of 1890 provide that no area in front of any building in the city of New York shall extend more than one-fifteenth part of the width of any street, nor in any case more than five feet from the inner wall of such area to the building. Section 201, article 10, chapter 6, of the revised ordinances of 1880 provides that no person or persons shall construct or continue any cellar door which shall extend more than one-twelfth part of the width of any street, nor more than five feet into any street. All these ordinances of the common council it was within their power to enact, and from them the inference is plain that, except as forbidden, the several constructions referred to are permitted. By section 86 of the Consolidation Act (Laws of 1882, chap. 410) there [349]*349was conferred upon the common council power to make ordinances not inconsistent with the law and Constitution of the State; among other things, to regulate the use of the streets, to regulate the use of sidewalks, to regulate the use of streets for sidewalks, signs, sign posts, awnings, awning posts, etc., “ and other purjoosesP The ordinances above referred to come distinctly within the 3d subdivision of the 86th section of the Consolidation Act, and within the power to regulate the use of the streets for the purposes mentioned. By the 17th subdivision of section 86 of the Consolida^ tion Act the common council is authorized to pass ordinances with respect, among other things, to areas, and an ordinance has been referred to above which authorizes the setting apart of areas extending five feet from the house line. This subdivision relates to the construction, repair and use of such areas, and the ordinance allowing bay windows, read in connection with that relating to areas, authorizes the construction of such bay windows within the inclosure of the area, for it is an ordinance affecting the use of that area> and within the power of the common council to pass. The ordinance of 1895 permits the construction of the bay window within the area space, so long as that construction does not encroach more than one foot beyond the street line.
Reading these ordinances together, and in connection with the power conferred upon the common council by the 86th section of the Consolidation Act, authority to build the bay windows under proper permission can be inferred. And so with reference to the building of the stoop on St. Nicholas avenue. Section 86, as said before, recognizes a stoop line, and the ordinance above referred to in that connection authorizes the building of stoops within that line, and not only the fact of the city’s consent is shown, but the authority to give that consent is also made to appear. But it is said that subdivision 4 of section 86 of the Consolidation Act applies and places an interdict upon the common council granting authority to build these bay windows and the stoop or portico. That subdivision of the section provides that the common council shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. This subdivision of section 86 must be con[350]*350strued with reference to the other subdivision, and is not to be interpreted as nullifying such express authority to do particular things as is given by such other subdivisions, but is to be construed as excluding or excepting such things as are specifically authorized by the other subdivisions. (Hoey v. Gilroy, 129 N. Y. 132.) The provisions cited of subdivision 4 of section 86, relating to placing or continuing encroachments upon any street or sidewalk, can only be reasonably applied to that part of the highway which is used by the public; that is to say, the carriageway and the sidewalk proper outside of the stoop line, and, as to the space within that line, is inoperative as affecting certain constructions authorized by the Consolidation Act, as was held in the case cited. In view of all the provisions of section 86, and of all the ordinances passed by the common council relating to the use and regulation of the streets, the prohibition of subdivision 4, above cited, can receive no other reasonable interpretation.
Hone of the objections taken to the marketability of the title to the plaintiff’s property are well founded, and the ruling of the court below was erroneous, and the judgment must be reversed and. judgment for specific performance of the contract as demanded in the complaint directed, with costs in the court below and in this court to the plaintiff.
Williams, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.