I concur in the result upon the ground that the common' council has no power to permit an abutting owner to encroach upon th^ . public street the fee of which is held by the municipality in trust for the public without express authority from the Legislature, and the Legislature has granted no such express authority as would justify the ordinance relied on to sustain this encroachment. I. think such action by the common council entirely unauthorized whatever its object. The jmblic are entitled to the free and unrestricted use of the streets and avenues in the city of Hew York which have been acquired by the city and are held in trust for the public use, and which have been paid for by abutting owners by assessments imposed by operation of law upon the theory that thé opening of the street or avenue would be a benefit to such abutting property. To authorize any one to appropriate the streets to private use would ' be an appropriation of próperty thus acquired and in which all the abutting owners have an interest, and certainly would require express legislative sanction.
I see no reason that justifies the court in postponing the issuance of the writ until sixty days after the determination of the appeal by the Court of Appeals. The defendant has used this pub- ■ lie property for many years withbut valid authority and I think it is time that this unauthorized use should cease.
I am, therefore, in favor of affirming the order appealed from.
Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.