in the prevailing opinion the reversal of this order is made to depend upon a lack.of power in the board of estimate and apportionment to grant the defendants Macy & Co. the privilege to construct this track. I" do not agree with all that is said in the pre vailing 'opinion, but I think this order should be affirmed on the ground that the plaintiffs are not in a position to enforce the rights of the public to restrain the defendants Macy & Co. from acting under *683t‘lie resolution of the board of estimate and apportionment.' It is. not alleged that the plaintiffs have any title to the fee of Thirty-fourth street, or that any property right of theirs is affected by the proposed use of the street. Ho structure is propósed to be erected in.the street, and there is no actual obstruction placed upon either the street or sidewalk. What was authorized was a use of the surface of the street, and such a use was authorized by the municipal authorities having control of the streets of the city of Hew York. That plaintiffs have no property in the street, and that the Legislature would have power to authorize this use .is settled since the decision of the Court of Appeals in People v. Kerr (27 N. Y. 188), reaffirmed in Kellinger v. Forty-second Street, etc., R. R. Co. (50 N. Y. 206), and lias never since been seriously questioned. Assuming that the Legislature has not authorized the board of estimate and apportionment to grant such a right as this resolution grants to IVIacy & Co., the tracks would be a public nuisance, but an individual could not maintain an .action to restrain its continuance unless he liad suffered special damage in addition to that common to all the inhabitants of the State from .the unauthorized use of the street.
The only possible injury-that could accrue to plaintiffs would be the interference with the sidewalk and roadway of the street by-the construction of these rails and subway below the surface of the street. Heither the proposed tracks nor subway, however, is in front of the plaintiffs’ property, but is entirely in front of the property of Macy & Co. Access to, the plaintiffs’ property would not be at, all interfered with, and it does not appear that the. construction of such a track across the sidewalk would incommode any one using'' the sidewalk more than the construction of a pavement for carts arid wagons. The plaintiffs, as the owners of property abutting on the street to the west of Macy A Co.’s, property, would not, I think, suffer any more from this inconvenience than the rest of the public in walking along this street.
It seems to me that the case here presented is entirely different from that of Callanan v. Gilman (107 N. Y. 360). That case recognized the right of an-abutting property owner to temporarily obstruct the streets for the removal, of merchandise from his building, and cited with approval Mathews v. Kelsey (58 Me. 56), where *684the court said: “As an incident to this right of transit,‘the public have a right to load and unload such vehicles (in the street or from, the street) as they find it cpnvenient to use. But in this respect each individual is restrained by the rights of Others. He must do his work in such -careful and prudent manner as not to interfere unreasonably with the convenience of others.” The facts of that casé (Callanan v. Gilman, supra), which justified the, plaintiffs in applying for an injunction, was that both the plaintiffs arid-the defendant were extensive retail and wholesale grocers, having stores next to each other On the south side of Vesey street ip the city of Hew York; that á large portion of the plaintiffs’ customers, in order to reach' théir store, were obliged to pass upon the sidewalk in front of the defendant’s store ; that goods were taken to and from the- defendant’s store by means of' trucks loaded in the street. The trucks were placed in the street adjoining the sidewalk, and then a bridge made of two skids planked over so as to make a plankway three féet wide and fifteen feet long, with side pieces three and one-half inches high, was placed over the sidewalk, with one end resting upon the stoop of the 'defendant’s store and the other .end upon , a wooden horse outside of the sidewalk near the truck to be loaded. This bridge was elevated above the sidewalk at the inner end about twelve inches and at the outer end about twenty inches, thus entirely obstructing the sidewalk, and goods were conveyed over-this bridge to and from the store. ' Persons wishing to pass upon the sidewalk in front of the store, when the bridge was in place, were obliged to step upon the stoop and go around that end of the bridge. The bridge was usually removed when not in Use; but there was uncontradicted evidence that it was sometimes permitted to remain in position, when not in use, for ten or fifteen .minute's, and that it sometimes remained in, position when in use over two hours, and remained in position across the sidewalk from four to five hours each business day, between the hours of nine o’clock a. m„ and five p. m., and that it obstructed the sidewalk the greater-part of every business day. It whs held ' that the maintenance of this bridge was 'a nuisance, and that the fact's proved special damage from the nuisance to" the plaintiffs. There" was proof that custom was turned away from the plaintiffs’ store on account of the obstruction, and that pedestrians were turned to the north *685side of tlie street before reaching plaintiffs’ store. That the plaintiffs suffered some special damage, not common- to persons merely using the street for passage, is too obvious for reasonable dispute. In that ease the court modified the injunction granted below by simply restraining the defendant from' unreasonably obstructing the sidewalk by any plankway or bridge or other like obstruction elevated above the sidewalk and reaching from said premises or from the stoop in front of the same to the roadway of said Vesey street, or from unnecessarily or unreasonably hindering or preventing the plaintiffs or their employees, servants and customers from having the convenient use of and passage along the sidewalk of said Yesey street in front of said premises Nos. 35 and 37 Yesey street by any like obstruction.
The facts of that case and this are so different that it seems to me that it is not an authority for the plaintiffs, but, in the modification of the judgment, rather an authority for the defendants. There is here no evidence that there will be any obstruction to this sidewalk which will interfere with the access to the plaintiffs’ premises. It does not even appear that the sidewalk will become more uneven or rough or inconvenient for use than the present paved entrance. The'use of the proposed tracks was expressly limited to the night time, so that the actual obstruction to the street will be less than the constant use of the passageway for trucks or vehicles and every citizen of the State of New York using this sidewalk will be incommoded in the same way that the plaintiffs will be incommoded by the construction of these tracks and the subway underneath the street.
In Fanning v. Osborne (102 N. Y. 441) the unauthorized railroad track was laid immediately in front of the plaintiff’s premises. The plaintiff was the owner of the bed of the highway, the public only owning an easement for highway uses in the land embraced in the street. Here the right to the injunction was because of the unauthorized use of the plaintiff’s property, and not a mere right to abate a public nuisance from which the plaintiff sustained no special damage.
The city owning the fee of the street has authorized its use for a special purpose. Such use will cause these plaintiffs no other, or greater damage than is caused the public generally in using the *686street, and for that reason, according ,to the settled rule of law, the public, and not individuals, must abate the nuisance.
I think, therefore, the. order appealed from should be affirmed.
Laughlin, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to continue in junction pendente lite granted, with ten dollars costs. Settle order on notice. .