People v. Mallory

The evidence, at the trial, in my opinion disclosed no facts which should lead us to a different conclusion from that which was reached by the general term of this court when this case was before it on the appeal from the order made at special term for an injunction pendente lite. Fully concurring in the views then expressed in the opinion of the court delivered by Mr. Justice Beady, we see no reason for doubting, that the judgment at the special term was correct and should be affirmed. People v. Mallory, 2 N. Y. Sup. 76. Nor was there any error in the decision of the motion to send the case back to the learned justice who tried the cause, for a specific finding as requested by the defendants’ counsel. The fact that similar sheds have been erected upon the piers mentioned in the request, without disturbance from the public authorities, is immaterial. The question in this case is, whether the shed erected by the defendants was constructed under lawful authority, or whether it was a nuisance. The fact that other parties had erected sheds upon other piers had, and could have, no bearing on *569this question. The rights of the defendants were to he determined by the facts showing the authority under which this particular structure was erected, not by the acts or by the authority or license given to others.

Even if the public authorities have allowed illegal structures to be placed upon other piers, evidence tending to show that fact would not control this case or assist in its proper adjudication. The existence of a nuisance cannot be justified, nor its continuance demanded, by establishing that similar nuisances Rave been permitted.

It seems, therefore, conclusively to follow that the order appealed from, as well as the judgment in this case, should be affirmed, with costs.

Order and, judgment affirmed.