It is not clearly shown that the news stand constituted an unlawful obstruction of the public street or is a nuisance per se, and the refusal of the court to award the writ of mandamus was the exercise of a sound judicial discretion.
The ordinance under- which the license was,, in form at least, regularly issued, was lawfully enacted at a time when there was express legislative authority therefor (Laws of 1882, chap. 410, § 86, subd. 3, as amd. by Laws of 1888, chap. 115, as further amd. by Laws of 1896, chap. 118), and it still remains upon the records of municipal laws as a valid and subsisting ordinance. The licensee presumably paid the fee prescribed by the ordinance upon the faith of the license^ and in reliance thereon also erected the news stand. He is not a party to this proceeding, nor is liis presence necessary. (Matter of *355Bohnet, 8 App. Div. 293; 150 N. Y. 279.) His interest, if any he have, finds protection in the court which refrains from using this high prerogative writ where the right thereto is open to question or where vested rights of other parties may be affected, and this is further emphasized by the universal rule that no return can be made to this State writ, except that it has been executed according to the command thereof. In brief, the office of the writ of mandamus is to enforce a plain legal djity. It behooves the court, therefore, to proceed with caution and discretion to the end that the issue of the writ may not be directed excepting in a case where the right thereto is clear and does not rest in doubt. (Reading v. Commonwealth, 11 Penn. St. 196; People ex rel. McMackin v. Board of Police, 107 N. Y. 235; People ex rel. McManus v. Thompson, 32 Hun, 93; People ex rel. Wood v. Assessors, etc., 137 N. Y. 201; People ex rel. Lynch v. Manhattan Railway Co., 20 Abb. N. C. 397.)
It must be borne in mind, in determining this appeal, that the city owns in trust the fee of the street in question. The facts are clearly stated in the prevailing opinion, and it appears therefrom and is therein conceded that this news stand does not materially obstruct public travel or traffic. The travel and traffic longitudinally along the street is not in the least obstructed by the news stand, for at this point such travel is lawfully obstructed for a greater width by the elevated railroad stairway. For does it appear that it obstructs public travel or traffic transversely across the street. It is not located within the lines of a crosswalk. As is well stated in the prevailing opinion, this stand could not obstruct travel or traffic for more than one lineal foot at the point farthest from the foot of the stairway and the entire space occupied by the stand may be said to be a waste portion of the public street. While technically an obstruction, practically it is no obstruction at all. The court is not obliged to send forth this extraordinary writ for the removal of every trifling obstruction which does not in fact obstruct travel or traffic. The relator is not an abutting owner, and even though an abutting owner might maintain the writ, it cannot be issued, at the behest of another for his benefit or upon grounds which might afford him a right to such remedy. (People ex rel. Simon v. Mayor, 20 Misc. Rep. 189.) It is expressly provided in section 41 of the Greater Few York charter (Laws of 1897, chap. 378) that the ordi*356nances of the city of New York, in force at the time of its enactment, “ so far as the same are not inconsistent ” therewith, are continued in full force and effect in said city subject to modification, amendment or repeal by the municipal assembly. It is very doubtful whether this ordinance has been repealed by the Greater New York charter. The power of the municipal assembly to enact ordinances under subdivision 3 of section 49 of the present charter and the prohibitions therein should not be construed in case of doubt against the city’s power. The Legislature, by providing for certain exceptions to the prohibition against authorizing the placing or continuing of encroachments or obstructions upon the street, did not intend to prohibit any and all other encroachments or obstructions. If it did, obstructions incident to local improvements in, over or Under the streets, the erection of temporary reviewing stands and all other obstructions, even of a temporary nature, excepting those made during the erection or repairing of a building on a lot opposite the same,, and excepting, also, those expressly authorized within the stoop lines, would be unlawful and subject to removal forthwith by this summary process upon the application of any citizen. Obstructions of a similar kind to those excepted are doubtless prohibited. (Tinkham v. Tapscott, 17 N. Y. 141.) A news stand in an unused, and practically useless part of a public street does not constitute an obstruction similar to building material and structures which occupy part of the traveled street or walk and seriously impede public travel • or traffic.
The prohibition against allowing the erection of news stands within stoop lines, without the consent of the adjacent owner, does necessarily prohibit their erection elsewhere. Although it is not free from doubt, I am of opinion that the express authority contained in the amendment of 1896 to enact ordinances in the future granting licenses to erect news stands under elevated railroad stairs has been repealed by the Greater New York charter on the theory that the latter statute contains a revision of the laws on that subject. That, however, is not decisive of the case at bar. I think that the city, by virtue of its ownership of the fee and its general power and control over the streets, and its authority to enact ordinances to regulate the use of the streets, and the general welfare clause, possessed ample authority to authorize the erection of such *357a news stand in such location and of such dimensions both before the enactment of the amendment of 1896 and since the revision contained in the Greater Eew York charter by which the express language of said amendment was omitted. The enactment of the amendment raises no presumption that the authority did not previously exist, and, if it did so exist, the repeal of the amendment would not repeal the ordinance even if there were no reservation in that regard. (Suth. Stat. Const. § 329; Trustees of Erie Academy v. City of Erie, 31 Penn. St. 516, 517; Chamberlain v. City of Evansville, 77 Ind. 542.) It is expressly provided in section 50 (Greater Eew York charter) that the legislative power of the municipal assembly to enact ordinances shall not be deemed limited by the enumeration of powers contained in section 49, and further authority in the form of a general welfare clause to enact additional ordinances is therein conferred.
It not having been clearly established as matter of law that this news stand washer se a nuisance and a substantial obstruction, its removal should not be compelled by mandamus.
O’Bbien, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.