or work in such a manner as to prevent danger to passengers who may be traveling such streets, roads or avenues, and to continue and uphold the said railing or fence until the work shall be completed or the obstruction or danger removed. And it shall also be the duty of such persons to place upon such railing or fence at twilight in the evening suitable and sufficient lights, and keep them burning through the night during the performance of said work, under the penalty of $100 for every neglect. (R. O. 1897, sec. 220, with verbal changes.)

§ 210. The provisions of the preceding section shall apply to every person engaged in building any vault or constructing any lateral drain from any cellar to any public sewer, or who shall do or perform any work causing obstructions in the public streets by virtue of any permit from any executive department, and also to all public or corporation officers engaged in performing any work in behalf of the corporation whereby obstructions or excavations shall be made in the public streets. (Id., sec. 221.)

§ 211. The extent to which such railing or fence shall be built in the several cases is hereby defined as follows, to wit:

1. In digging down any street or road by placing the same along the upper bank of such excavation, or by extending the fence so far across the street or road as to prevent persons from traveling on such portion as would be dangerous.

2. In paving any street or avenue by extending it across the carriageway of such street or avenue, or if but a portion of the width of such carriageway be obstructed, across such portion, in which case the obstruction shall be so arranged as to leave a passageway through, as nearly as may be, of uniform width.

3. In building a sewer by placing it across the carriageway at the ends of such excavation as shall be made.

4. In the building of a well by inclosing the same and the obstructions connected therewith on one or more sides. 5. In building vaults by inclosing the ground taken from the vaults.

6. In placing building materials in the streets, the said material shall be so placed as to occupy not more than onethird of the width of the carriageway of the street or avenue. In streets or avenues where railroads occur, said materials shall not be placed nearer to the track than two feet. In all cases sufficient lights shall be placed upon such building materials, and kept burning through the night as provided in the preceding sections. It shall be lawful for persons who desire to erect large buildings to erect and maintain a bridge, not to exceed seven feet in height above the sidewalk and six feet in width, extending the whole length of the proposed building; the steps leading to the same to rest upon the sidewalk of the adjoining premises. (Id., sec. 222.)

§ 212. In all cases where any person or persons shall perform any of the work mentioned in the preceding sections, either under contracts with the corporation or by virtue of permission obtained from the Mayor and Board of Aldermen, or either of departments, such persons shall be answerable for any and every damage which may be occasioned to persons, animals or property by reason of carelessness in any manner connected with the said work. (Id., sec. 223, with verbal changes.)

§ 213. It shall be the duty of the Borough President having charge of the particular class of improvements to see that the requirements contained in this article in regard to the erection of fencing and placing lights, in all cases be complied with severally, under the penalty of fifty dollars for each and every neglect. (Id., sec. 224, with verbal changes.)

§ 214. It shall be the duty of the said Borough President, when any of the work referred to in any of the preceding sections shall be performed, whether for digging down streets or roads, paving streets, building sewers and building wells, or digging trenches for water-pipes, by persons under contract with the corporation, or for building vaults or placing building materials in streets, or constructing drains, or any other work for forming an obstruction to the said street, by virtue of permission duly obtained, to see that the requirements of this chapter, in regard to erecting the necessary fences and placing the necessary lights, be complied with, and to make the necessary complaint to the Corporation Counsel for any omission on the part of the person referred to, under the penalty of fifty dollars for every neglect. (Id., sec. 225, with verbal changes.)

§ 215. In all contracts for paving streets, constructing sewers, and building wells and pumps, or for doing any other work whereby accidents or injuries may happen in consequence of any neglect or carelessness during the performance thereof, it shall be the duty of the departments by whom such contracts are made to insert a covenant requiring the contractor or contractors to place proper guards for the prevention of accidents, and to put up and keep suitable and sufficient lights burning at night during the performance of the work; and that they will keep the corporation harmless and indemnified against all loss and damage which may be occasioned by reason of any unskillfulness or carelessness in any manner connected with the execution and completion of the work. (Id., sec. 226.)

§ 216. In all contracts for digging down any road or street, where such digging, if left exposed, would be dangerous to passengers, the heads of the proper department shall insert a covenant whereby the contractors shall be bound, at their own expense, to erect a fence or railing along or across the street, in such a manner as to prevent danger to

passengers, and so to continue and uphold the said fence or railing until the street is completed. (Id., sec. 227.)

§ 217. A like fence or railing shall be put up and upheld in all cases in which a road or street is dug out at the cost of the corporation. (Id., sec. 228.)

§ 218. In all contracts for the work for the corporation upon any public building, or in any public street or place, in the performance of which accidents or injuries may happen to the person or property of another, a provision shall be inserted that the contractor shall place proper guards for the prevention of accidents, and shall put up and keep at nights suitable and sufficient lights during the performance of the work; and that he will indemnify the corporation for damages or costs to which they may be put by reason of injury to person or property of another resulting from negligence or carelessness in the performance of the work. (Id., sec. 355.)

Article X.- The Bureau of Incumbrances.

I. Incumbering the Streets.

219. No person shall incumber or obstruct any street, roadway or sidewalk which has been opened, regulated or graded, according to law, in The City of New York, with any article or thing whatsoever, except as provided in section 262 of these ordinances, without first having obtained written permission from the President of the Borough in which such street, roadway or sidewalk is situated, under the penalty of five dollars for each offense, and a further penalty of five dollars for each day or part of a day such obstruction or incumbrance shall continue. (R. O. 1897, sec. 179, with verbal changes.)

This is substantially the same as sec. 33 of Ch. 6, R. O. 1880; sec. 1, Ch. 24, City Ordinances, 1859; sec. 5, tit. 11, ch. 22, Revised Ordinances, 1839; and par. 26, Ch. 13, R. O. 1811. In the first publication of the ordinances in 1793, after the Revolution, it was provided, paragraph 6, p. 14, that no person should "lumber any foot path or "incommode foot passengers" under a penalty of five shillings, and also by paragraph 12, p. 16: "That no Person or Persons shall incumber or obstruct any street, wharf, or pier with any Carriages, Timber, Boards, Planks, Staves, Heading, Pitch, Tar, Turpentine, Grindstones, Anchors, Bricks, or any other kind of Lumber, or other Thing, without having first obtained Leave or Permission so to do from the Mayor or Recorder, or the Alderman of the Ward; and that Leave and Permission is hereby limited and confined to Persons only that are or shall be building or repairing Houses or other Buildings, under the Penalty of Forty Shillings for each Offence," and if the owners fail to remove the same it may be carted to the Alms-house Yard and sold, unless redeemed for two pence a day for every load carted. It is important to note that in this and many of the following sections affecting street obstructions the law has practically been unchanged for over a century. The decisions on the general subject of incumbrances are very numerous. It was a well-established principle at common law, which has been repeatedly affirmed in this State, that any obstruction, encroachment or incumbrance on a public highway without lawful authority was a public nuisance as to the public and a private nuisance as to any individual injured. See statement of

law in leading cases of Cohen vs. Mayor, etc., of N. Y., 113 N. Y. 532, where the city was held liable for damages resulting from a wagon it allowed to remain on the sidewalk, and Callanan vs. Gilman, 107 N. Y. 361, where adjoining owner recovered damages and enjoined defendant from using skids on the sidewalk so continuously as practically to amount to an appropriation of it for his own purposes. Also see Davis vs. Mayor, etc., 14 N. Y. 506; Hume vs. Mayor, etc., 74 N. Y. 264.

Where ministerial officers fail to do their duty and remove nuisances, mandamus lies to compel them. People ex rel. O'Reilly vs. Mayor, etc., of N. Y., 59 How. Pr. 277. And an injunction to restrain him will not be granted. Ely vs. Campbell, 59 How. Pr. 333. Mandamus lies to compel removal of showcases obstructing the sidewalk. People ex rel. Bentley vs. Mayor, 18 Abb. N. C. 123; also see People ex rel. Mullen v. Newton, 20 Abb. N. C. 387. Where city fails to remove a nuisance, a private owner may do so, joining the city as a co-defendant. Overton vs. Village of Orlean, 37 Hun, 47.

The city may enjoin the continuance of the nuisance. City of N. Y. vs. Thorley & Regan (Pabst Hotel), McAdam, J., N. Y. Law Journal, Nov. 19, 1901; affd. 73 App. Div. 626. Wagons on the sidewalk, if a nuisance, are illegal. Flynn vs. Taylor, 127 N. Y. 596. There can be no appropriation of the public sidewalk to private uses. Met. Ex. Co. v. Newton, 21 St. Rep. 73.

As to permanent encroachments, see Ackerman vs. True, 175 N. Y. 353, where the extension of a house on Riverside Drive beyond the building line under a permit from the Park Department, was held to be a nuisance and illegal. See, also: City of New York vs. Knickerbocker Trust Co., 104 App. Div. 223; Williams vs. Silverman R. Co., 111 App. Div. 679; McMillan vs. Klaw & Erlanger, 107 App. Div. 407; Hatfield vs. Strauss, 189 N. Y. 208; 117 App. Div. 671; City of New York vs. Rice, 198 N. Y. 124.

City council cannot authorize private owner to take for private use a portion of the street although may authorize fencing in for beautifying purposes. People ex rel. Cross Co. vs. Ahearn, 124 App. Div. 840. Permanent obstruction beyond building line is encroachment and a permit granted is illegal and its revocation not necessary. City of N. Y. vs. Rice, 198 N. Y. 124.

The general questions are usually raised in equity suits. See cases, supra; also Hallock vs. Schreyer, 33 Hun, 111; Hearn vs. Mayor, Daily Reg., May 26, 1885; People vs. Met. Tel. Co., 11 Abb. N. C. 304; Knox vs. Mayor, 55 Barb. 404; Emmons vs. Campbell, 22 Hun, 582.

The legislature may delegate to the Rapid Transit Commissioners of New York City power to authorize structures in streets which, without such authority, would be obstructions under the common law. Turl vs. N. Y. Construct. Co., 46 Misc. Rep. 164.

While mandamus has been granted (see cases, supra), it has frequently been denied.

Mandamus will not lie where there is a remedy at law and in equity and the right is not clear. People ex rel. Lynch vs. Manhattan R. Co., 20 Abb. N. C. 393.

Where a stand was erected within the stoop line, and with the consent of the owner of the premises and under the ordinance passed under Ch. 418, L. 1887, application for mandamus to compel its removal denied, although it was stated that if it was used for purposes not permitted by law the owner might be entitled to an injunction. People ex rel. Meeks vs. The Mayor, Lawrence, J., Daily Register, May 29, 1888.

Application denied where there was an obstruction on the sidewalk between the house and street line which did not interfere with the public. People ex rel. John vs. Mayor, Beach, J., Daily Register, June 2, 1887.

Where an awning has been erected with the apparent power of the municipality to authorize it, Judge Brown, in U. S. Circuit Court, refused to pass on matter in motion for a preliminary injunction. Whitman vs. Hubbell, 20 Abb. N. C. 385.

§ 220. No post shall be erected or put up in any of the streets, roads, lanes or highways in The City of New York, unless under the direction of the President of the Borough in which such post is to be erected, under the penalty of five dollars for every such post. (Id., sec. 187, with verbal changes.)

§ 221. The President of any Borough, whenever directed by the Board of Aldermen, shall order any step-stones used for entering carriages, any railing or fence, any sign, signpost, or other post, any area, bay window or other window, porch, cellar door, .platform, stoop or step, or any other thing which may incumber or obstruct any street, to be altered or removed therefrom, within such time as may be limited by the Board of Aldermen. (Id., sec. 193, with verbal changes.)

§ 222. The order of direction mentioned in the last preceding section shall be in writing, and shall be served personally or by leaving it at the house or place of business of the owner, cccupant or person having charge of the house or lot in front of which step-stone or other incumbrance or obstruction may be, or by posting the said notice or order upon such step-stone or other incumbrance or obstruction. (Id., sec. 194.)

§ 223. If any owner, occupant or person having charge of any such house or lot in The City of New York shall refuse or neglect to obey or comply with such notice or order, he, she or they shall forfeit and pay the sum of ten dollars, and the further sum of five dollars for each and every day, from and after the time limited and appointed in said order, until the same shall have been complied with. (Id., sec. 195.)

II. Bay and Show Windows.

§ 224. The Borough Presidents and the Park Commission. ers having jurisdiction, shall issue permits for the erection of bay windows projecting beyond the building line, provided, in the opinion of the officer having jurisdiction, no injury will come to the public thereby. Permits for the erection of bay windows lying within any park, square or public place, or within a distance of 350 feet from the outer boundaries thereof, shall be issued by the Park Commissioner having jurisdiction, as provided in section 612 of the Charter, as amended by section 1, chapter 723 of the Laws of 1901. Permits for the erection of all other bay windows shall be issued by the Borough President having jurisdiction. For the purposes of this ordinance a "bay window" shall be taken to mean and include all projections on the face o a building in the nature of windows, such as are commonly called bay windows, show windows, oriel windows and bow windows, without regard to the material of which they are constructed or to the purposes for which they are to be used. (This and the following sections, to 234 inclusive, comprise the Bay-Window Ordinance," approved January 30, 1903.)

The recent case of Williams vs. Silverman Construction Co., 111 App. Div. 679, expressly holds that permits granted under this ordinance are invalid, as the Board of Aldermen has no power to allow permanent encroachments on the public highways. But see, contra, Broadbelt vs. Loew, 15 App. Div. 343. affd. 162 N. Y. 642. Section 86 of the Consolidation Act there construed has been prac