By chapter 697 of the Laws of 1887 authority was vested in the board of the department of docks to establish the easterly line of Exterior street along a portion of the East river. This act was amended by chapter 272 of the Laws' of 1888 and hy chapter 257 of the Laws of 1889. By these acts authority was devolved upon the department of docks to determine upon a plan for said street and there was vested in the board of street opening and improvement of the city of New York, after the adoption of the plan and upon the written petition or consent of certain property owners, authority to institute proceedings in i/nvitu/m to acquire land for the purposes of the street, as determined upon by the dock department. The boundaries of the street were laid out and a map and plan of the same was adopted by the dock department. The board of street opening and improvement instituted proceedings thereunder and the city acquired title to the lands necessary for the street. These proceedings were begun April 23, 1891, and were terminated by an order of confirmation of the report of the commissioners appointed in the proceedings, and the same was filed in the office of the clerk of the court on the 14th day of July, 1897. A part of the land so taken was the property of these plaintiffs, and they have been assessed upon their remaining lands a proportionate cost of the proceeding. Nothing further has been done by the city to open or grade the said street, the same has never been opened for public use, and now ■exists only upon paper, except so far as the city itself has made use ■of a part of the land so acquired for its purposes.
*220By the terms of the act of 1887 it was provided (§ 2) that the street should he laid out as provided by the plan adopted by the dock department, “ and. the same shall be the sole plan according to which any wharf, pier, bulk-head, basin, dock or slip or any wharf, structure' or superstructure shall thereafter be laid out or constructed in that, part of the water front included in and specified upon said plan, and from .the time of the adoption thereof, no wharf, pier, bulk-head, basin, dock or slip, nor any wharf structure or superstructure shall be laid out, built.or rebuilt in that part of the water-front aforesaid, unless in accordance with such plan'. Excepting, nevertheless, that, the board of the department of docks may build or rebuild, or license the building or rebuilding of temporary wharf structures or superstructures to continue and remain for a time not longer than until the cpnstruction of said Exterior street shall be begun, all such licenses to be then determined without any right to damages or compensation in favor of the licenses*."
It is evident that the exception created' by the terms of the' act was intended to be applicable to .the actual construction of the street, and during the period prior to such time the dock.department was authorized to make use of this land and water front for any temporary purpose, provided that a nuisance was not created thereby, ■ On April 27, 1900, over a year prior to the time when the report of the commissioners in the condemnation proceeding had been confirmed and hied by order of the court, the board of dock commissioners, upon the application of the department of street cleaning of the city of Yew York, passed a resolution granting to such department permission to erect and maintain a dumping board on the crib bulkhead at the foot of East Eightieth street, and' under such authority the street cleaning department erected such-dumping board and other buildings in connection with the same, and has since used the board and other structures as a dumping place for waste paper, ashes,' etc., and for the separation of such material therefrom as was suitable for sale. Yo garbage has. ever . been dumped at this place, as the same is separately collected and is disposed of in other places in the city.
By the provisions of the Greater Yew York charter (Laws of 1897, chap. 378, § 836), the board of the department of docks is *221required to set apart for the use of the department of street cleaning, the board of health and other city departments, suitable and sufficient wharves, piers, bulkheads, slips, and berths in slips for the use of said departments, and’, by section 542 of the charter, such ■dock department is required to make compliance with the request of the street cleaning department, and to set apart such places, ■wharves, piers, etc., as may be necessary. By section 534 of the charter the commissioner of street cleaning is required to remove from the streets of the city and make disposition of ashes, street sweepings, garbage and other light refuse and rubbish, as often as the public health requires or as may be found practicable. It was pursuant to this authority and the request of the street cleaning department that the dock department authorized the construction of the structure of which the plaintiff makes complaint.
In September, 1900, the plaintiffs brought this action to enjoin and restrain the city from making use of the property in the manner above specified under a claim that such structures are maintained and used without authority and that the same are a public nuisance. The complaint proceeds upon two theories, Jvrst, that the land and water front is used in violation of law, and especially in violation of the act under which Exterior street was constituted and authorized to be laid out and opened; and, second, upon the theory ■that the business as conducted is a nuisance, as matter of fact. The first theory, therefore, is that the structures are a nuisance joer se, as matter of law; and, second, a nuisance, as matter of fact, assuming them to be lawful structures.
It is evident that the court in its decision has adopted both theories, although it is quite probable that the learned court would not have found as matter of fact that the business as conducted constituted the same a nuisance if the other element which the case presented had been eliminated. It is undoubtedly true that the defendant, acting through its constituted authority, was commanded to lay out Exterior street in the manner directed by the statute, and it was required in the performance of the mandate of the statute to exercise reasonable diligence in laying out and grading the street for the benefit of the general public, and particularly for the benefit of the persons whose lands have been appropriated for the purpose. Undoubtedly the city has been guilty of laches in not proceeding with more *222diligence to lay out, regulate and grade this street for purposes of its proper use. Its failure in this regard,, however, can in no view be made to furnish ground for this action, as the plaintiffs are not entitled to a remedy to correct the evil by' way of injunction. So long as the street in.fact remains unopened for public use, the right granted to the city to. authorize the land taken and the water front to be temporarily used remains; and if such use is of such a character that it can be terminated at any time when the street is opened and graded for the use of the public, it continues to exist so long as such conditions exist. The failure to perform the duty and open •the street as commanded by the statute may be conceded to have been neglectful and a violation of duty on the part óf the city; but so long as the street' remains unopened, the use authorized by the dock department is a use authorized by the statute and continues.to be and is temporary, no matter how long the same lasts, as it. cannot be construed into a permanent occupation unless permitted .to exist after the street is opened to public use.
The remedy for this neglect upon the part of the city is not by way of injunction, for, no matter how it result, it would not operate as a compulsory process upon the city to open the street, and until it perform that act, the occupation is lawful. The plaintiffs, as parties in interest, have abundant authority to compel the city to make compliance with the statute. Their remedy in that respect, however, is mandatory to compel affirmative action in- obedience to the commands of the statute to layout the street. . The dock‘department is invested with as much authority to authorize the temporary use of a portion of this street and water front by another department of the city as to authorize its use by any other person or corporation. Of course, it could not authorize the maintenance of a nuisance thereon,- but it can authorize a legal structure in which to conduct a legal business, and such period of use will continue to be lawful until the public authorities perform their duty and open the street either voluntarily or .under compulsion. It seems clear; therefore, that this structure may be authorized for the period prior to the opening of the street, whether the same can be thereafter maintained as matter of right, or not. So far as the present surroundings are concerned, the dock is not occupied by the defendant’s dumping, board and the use thereof is not, therefore, exclusive as was the case in Hill v. Mayor (139 N. Y. 495).
*223! We do not find it necessary in disposition of the present case to determine whether the city is authorized to construct and maintain this dumping board at this particular place after the street is opened or not. It is evident, however, that such determination must rest .upon the authority vested in the dock department and the character of use which may be made by the street cleaning department. The question is to be solved by a construction of the statutes under which the power is exercised, and for the present it is not necessary •for us to express an opinion thereon. It is sufficient now to say that the present use is authorized by the statute; consequently, it is not a nuisance per se and cannot become such until the street be opened for. public use.
So far as claim is made that the business as conducted constitutes the same a nuisance, we think the evidence is insufficient for such purpose. There is no pretense but that the business is properly conducted with as little annoyance to surrounding persons and property as is compatible with .carrying on the business at all. Indeed, upon this subject the city sought to show how the business was carried on and that it was done with care and circumspection. The court ruled that it was not necessary for the defendant to give proof upon that subject until the method and manner of doing the business was attacked. No proof was offered upon such subject as a distinct issue ; consequently, it must be regarded that the business was in all respects properly conducted.
The evidence offered to establish the nuisance as a fact tended to show that dust and ashes were blown from the dump across property in the vicinity, but there was no proof, so far ás we are able to find, showing that dust and ashes were blown from the dump upon the property of the plaintiffs, while it did appear that considerable dust and other materials came from lime and cement stored and handled in that vicinity, and from brick yards and coal barges which were unladen near by. Indeed, the proof was stronger as to floating dust, ashes and other material from these sources than from the dump. There was proof that some smell arose from the dump, but how pungent and offensive it was, or how far it extended, was not made to appear, nor did it appear that the plaintiffs were affected by it.
Substantially, the whole basis of injury to the plaintiffs’ property was claimed to arise from the structure itself, and we think there *224was no sufficient proof that the business as conducted constituted the same a nuisance.
It is to be borne in ■ mind that the work of the street cleaning department is a work of .necessity. Upon it is dependent in large degree the comfort, health and happiness of a large city, and it is common knowledge that some individuals must always suffer more inconvenience and discomfort from the performance - of this public necessity than others. If the manner and method adopted in the conduct of the business does, not create a nuisance, the right to conduct it must be' 'supported: (Kobbe v. Village of New Brighton, 23 App. Div. 243; Pettit v. N. Y. C. & H. R. R. R. Co., 80 Hun, 86; Health Dept. of N. Y. v. Purdon, 99 N. Y. 237.)
As before observed, we think the trial court would have failed to find that this business as conducted constituted it a nuisance, had it not been for the fact that it regarded, the existence of the structure a nuisance per se. As we regard the structure as lawful, and the evidence as insufficient upon which to find that the conduct of the business created a nuisance, it necessarily follows that the judgment. should be reversed and a new trial granted, with costs to the appel- • lant to abide the event.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. ’ -
Sic.