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

8 217. 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 hap pen 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.

8 219. 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 N. Y. 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, and City of N. Y. vs. Knickerbocker Trust Co., O'Gorman, J., N. Y. Law Journal, June 1, 1906.

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 v. 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 Commissioners 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 of 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.)

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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

tically incorporated in section 49 of the Charter. The Park Commissioners have power to grant permits for bay windows which project beyond the building line but within the stoop line. Wormser vs. Brown, 149 N. Y. 163. This case, however, has been distinguished in the recent one of Ackerman vs. True, 175 N. Y. 353, which declares permits and ordinances allowing permanent encroachments on the public streets to be invalid. Bay windows have always been allowed in the city, but before this ordinance they were limited to one foot. (See Laws and Ordinances 1793, p. 17, par. 13, and subsequent compilations.)

§ 225. Before the erection of any bay window projecting beyond the building line shall have been commenced, the owner or his duly authorized agent shall make application in writing to the officer having jurisdiction, on suitable blanks furnished by him, and shall state the length and width of the proposed bay window, the number of stories through which it is intended to be carried, and the number of square feet of area covered by that portion of the bay window projecting beyond the building line. Drawings showing the size of and area covered by the bay window, the number of stories through which it is proposed to be carried and its location in reference to the lot and building lines shall be submitted with each application, and for the purpose of computing the area covered by a bay window projecting beyond the building line the outside face of the bay, exclusive of cornices, pilasters, trims, etc., shall be the line taken as a basis of computation.

Each application for the erection of a bay window projecting more than one foot beyond the building line shall have indorsed thereon the consent of all the adjoining property owners within a distance of fifty feet from the centre of the bay window, on the same side of the street; meaning, thereby, so much of the side of a street as is unintersected by any other street on which it is proposed to be erected.

Each application shall be accompanied by the amount of the compensation due the city for the privilege of erecting said bay window, as hereinafter provided. (Id., sec. 2.)

§ 226. Each application for the erection of a bay window projecting more than one foot beyond the building line shall be accompanied by a certified copy of the last assessed valuation of the property on which said bay window is to be erected, which appears upon the books of the Department of Taxes and Assessments. Except as hereinafter provided, the amount that shall be paid as a compensation to the city for the privilege of erecting each bay window shall be at the rate of ten per cent. of the assessed value per square foot of the property on which the said bay window is to be erected, for each and every square foot, or fraction thereof, of area covered by said bay window beyond the building line for each and every story through which it is carried.

If the projection of a bay window does not exceed one foot beyond the building line, and it is not carried higher than the sill of the second-story windows, the rate through

out The City of New York shall be ten cents for each square foot or fraction thereof of horizontal area covered by said bay windows beyond the building line. (Id., sec. 3.)

§ 227. Bay windows may be hereafter erected with a projection of not more than three feet beyond the building line, provided that when the projection exceeds one foot beyond the building line the total number of feet in width occupied by all the bay windows on the same frontage of the same building shall not exceed seventy-five per cent. of the width of the frontage of the building on which they are located. When the total number of feet to width occupied by all the bay windows on the same frontage of the same building exceeds seventy-five per cent. of the width of the frontage of the building on which they are located, the projection shall not exceed one foot beyond the building line, nor shall the bay window be carried higher than the sill course of the second-story window. (Id., sec. 4.)

§ 228. Permits for the erection of bay windows shall be issued in duplicate, one of which shall be retained by the applicant and kept at the building during the erection of the window, and the other shall be filed by him, with the plans for the construction of the window, in the Department of Buildings. If it shall appear, upon completion, that the bay window occupies a greater number of square feet, or has been carried through a greater number of stories than shall have been paid for, the applicant shall pay twice the sum previously paid for each square foot of area occupied by said bay window over and above the number of square feet paid for originally. (Id., sec. 5.)

§ 229. Permits granted pursuant to the provisions of this ordinance are revocable permits, and shall have the following clause printed thereon, viz.: “This permit is issued subject to revocation thereof at any time hereafter by the Board of Aldermen of The City of New York, upon the recommendation of the officer having jurisdiction, when the space occupied by said bay, or any portion thereof, may be required for any public improvement, or, upon any violation of any of the terms or conditions upon which this permit is issued." A permit for the erection of a bay window shall be deemed to have expired when the bay window is taken down, and the space formerly occupied thereby shall no longer be used for the purpose for which the permit was issued, unless a permit for its reconstruction shall have been granted, as provided in section 7 of this ordinance. In case it is thereafter desired to erect a bay window on the said property, the applicant shall comply with all the provisions of this ordinance. (Id., sec. 6.)

§ 230. Permits for the reconstruction of now existing bay windows as defined by this ordinance, and for the reconstruction of all bay windows which shall be hereafter erected under the provisions of this ordinance, shall be issued by the officer having jurisdiction, without the applicant's