Village of New Rochelle v. Lang

27 N.Y.S. 600, 75 Hun 608, 82 N.Y. Sup. Ct. 608, 59 N.Y. St. Rep. 616

Opinion

CULLEN, J.

This is an appeal from an order denying an injunction to restrain the defendant from constructing a wooden building in the village of New" Rochelle. The injunction was properly denied. We think that the plaintiff had no standing to maintain the action. “It is no part of the province of a court of equity to enforce the penal laws of the state or the by-laws of a corporation by an injunction unless the act sought to be restrained is a nuisance.” Mayor, etc., v. Thorne, 7 Paige, 261. The same rule was held in Village of Brockport v. Johnston, 13 Abb. N. C. 468. Even if the act were a nuisance, the remedy was by indictment, or in equity only at the suit of the people, or of some private person who alleged special damages. The provision of the statute (chapter 306, Laws 1876) authorizing the village to “prohibit, restrain, and prevent” gave the plaintiff no standing in equity to bring an action otherwise not maintainable by it. It provides for restraint not by injunction, but by the means placed in the power of the village penalties, etc. We have also grave doubts as to the validity of the ordinance enacted. ■ The village is empowered to fix a fire district, and “to prohibit, restrain, and prevent within said fire district the construction of any frame or wooden building for any purpose whatever.” The ordinance passed by the trustees prohibits the erection of any such building within the limits named without the consent of the trustees. This is a different prohibition from that authorized by the statute. The law authorized the establishment of a district in which there should be no wooden buildings. The trustees have fixed the district in which there may or may not be wooden buildings, as the trustees pleased. The order appealed from should be affirmed, with $10 costs- and disbursements.