I concur in the opinion of Judge BARTLETT that the order of the Appellate Division should be affirmed and judgment absolute rendered for the plaintiff, and will add but a few words to what he has written. It is to be premised that although under section 1338 of the Code the order of the Appellate Division must be considered as granted on questions of law alone, still the disposition of this appeal is not entirely controlled by the findings of fact made by the trial court. There are first to be considered the pleadings to see what allegations are charged in the complaint, and which of them are admitted and which put in issue by the answer. The findings are to be construed in the light of the pleadings and then if it appears that any finding necessary to uphold the judgment granted has been made without sufficient evidence to sustain it, the judgment has been properly reversed by the Appellate Division for error in law. (Shotwell v. Dixon, 163 N.Y. 43.) The possession, occupation and title of the plaintiff were found by the trial court. The complaint charged that the defendants had fenced in a part of 17th street opposite the plaintiff's premises and upon the said street and Union Square, a public park adjoining thereto, they had erected wooden structures, with high smokestacks, which were used as machine shops, in which were operated not only forges but an air compressor plant to run drills and other machines, with the necessary boilers. These allegations were admitted by the answer and were found by the trial court. The court further found: "The erection and maintenance of the structure in front of the plaintiff's hotel by the defendants have resulted and will during their continued maintenance result in loss and injury to the plaintiff." On these findings the plaintiff made out a primafacie *Page 473 case and became entitled to the relief asked unless the defendants justified their occupation of the public street and contiguous park by authority of law, and also justified by like authority their use of the premises in such manner as would otherwise constitute a nuisance as against the plaintiff. I think the defendants entirely failed to prove lawful authority for their acts and conduct. Doubtless the construction of the Rapid Transit Railroad in the city of New York is a public work of the highest importance. I concede that for consequential damages necessarily inflicted on the property of adjacent owners by the skillful prosecution of the work there is no legal liability. But I deny that the erection and maintenance of the defendants' machine shops and power plant on 17th street, opposite the plaintiff's hotel, is necessary to the performance of the public improvement, and I deny that they have been ever located at that point by legal authority. The route of the railway is along Fourth avenue. The structures, the subject of this action, are outside of the line of the road. Neither they nor the appliances operated therein are strictly necessary to the construction of the railroad, though undoubtedly they are very useful and advantageous in the prosecution of the work. I will also assume, without conceding, that the board of rapid transit commissioners might have adopted a plan for the construction of the railroad, involving the use of air compressors, and also have located the places where the necessary plants should be erected. But it has neither done nor assumed to do anything of the sort. By the contract for the building of the road, which determines this question, the option rests wholly with the contractors to use such means for blasting and excavation as they may deem best, so long as they do not invade the property rights of others or create a nuisance. The defendants might employ steam drills or hand drills if they saw fit, and if any new method were invented to-day by which rock could be more easily excavated than the means now in use the defendants would be at liberty to adopt it. But were power plants necessary to the proper prosecution of the work by the defendants *Page 474 the commission did not determine the points at which they should be located, much less agree to furnish gratuitously to the contractor sites for their erection. Under these circumstances I do not see how it is possible to distinguish the present case from those of Cogswell v. New York, New Haven and HartfordRailroad Company (103 N.Y. 10); Bohan v. Port Jervis GasLight Company (122 N.Y. 18) and Morton v. Mayor, etc., ofN.Y. (140 N.Y. 207). Surely the maintenance of a power plant cannot be more necessary to the performance of the defendants' work than an engine house is to the operation of a steam railroad, a retort house to the manufacture and supply of gas or a steam pump to a high level water service, yet in all these cases the structures and appliances were held to invade private rights because, though having legislative authority for their maintenance, the legislature had not located the points at which they were to be maintained. In the last case Judge O'BRIEN said: "The legislature undoubtedly authorized the defendant to construct a building and to place in it the necessary machinery to accomplish the purpose in view. But that is not the act complained of or which produced the injury to the plaintiff's property. The wrong consisted in placing the building and machinery so near to the adjoining property as to injuriously affect it by the noise and vibration. * * * If it was not possible or practicable to do that upon the land that the defendant owned then more could have been acquired for the purpose. The legislature did not select the place for the station, but the defendant did. A general authority to raise and expend money for the purpose of extending and enlarging the supply of water and erecting the necessary structures and machinery for that purpose is neither an express nor an implied authority to construct a pumping station which adjoins the wall of another house or block of houses in such manner as to render them untenantable by the noise and vibration." Substitute for "pumping station" power plant, and the doctrine disposes of this case. Other power plants have been constructed by contractors engaged in building this railroad on property *Page 475 acquired by them for that purpose at their own expense at a distance from the line of the railroad and it seems in localities where their maintenance constitutes no injury to others. It is not a question of transferring the burden from this plaintiff to the shoulders of some other landowner. In localities where foundries, factories, boiler shops, etc., are established, these power plants would work no harm. Such an emission of smoke as would constitute a nuisance in the city of New York might afford no just ground for complaint in Pittsburg. The plaintiff will be compelled to bear, without indemnity, sufficient loss for the public benefit by the construction of this railroad along the side of his property adjacent to Fourth avenue. His burden should not be illegally increased.
The defendants claim further authority for the acts complained of under section 4 of the Rapid Transit Act (Chap. 556, Laws of 1892): "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction." If the views which I have expressed are correct, then this section cannot be construed as authorizing the grant of any use of the park for purposes which would constitute a nuisance to adjacent owners. Moreover, the privileges authorized by the statute must be temporary. The erection of a structure and plant which is to be maintained during the time required for the construction of the whole line of railroad, approximately a term of three years, is, to my thinking, not temporary. The findings of the trial court were, therefore, in the respects which I have discussed, without any evidence for their support, and the Appellate Division properly reversed the judgment of the Special Term for error of law.