(dissenting):
By chapter 19S of the Laws of 1917 the charter of the village of Peekskill (Laws of 1883, chap. 117, tit. 5, § 3, subd. 27) was amended and additional power granted the municipal authorities, as follows:
“ To also issue permits for placing tanks and containers for the storing of gasoline, kerosene or other oils, within the bounds of a public highway and beneath the surface thereof, and to permit arrangements for drawing therefrom upon the curb line of such street, and to charge such fee, license or rental therefor as they may deem proper and to make such regulations in reference thereto as they may see fit, and to prohibit all such constructions without permits or licenses, and also to prohibit the same at any point or place in any highway that they may deem the location thereof as unnecessary or improper, and to cause the removal thereof at the expense of the adjoining property owner, when said board *542shall deem it necessary and proper, and to prevent the construction and cause the removal of areaways and steps within the lines of a -public highway, and to forbid or grant permission for the construction of vaults within the lines of a public highway, and to fix and collect rentals therefor.”
This I think must be considered as express authority to permit the pumps in question as an arrangement for drawing gasoline from tanks located within the bounds of the public highway.
The remaining question is as to the power of the Legislature to confer such authority. The majority of the court, as I understand it, is of the opinion that the act of the Legislature referred to is ineffective for lack of power, but with this conclusion I am unable to agree.
It has been held repeatedly that the Legislature may authorize structures in the public streets even for private use and benefit, which are reasonably incident to the ordinary uses of the street, and which without such authority would be public nuisances. (Hoey v. Gilroy, 129 N. Y. 132; Jorgensen v. Squires, 144 id. 280; Wormser v. Brown, 149 id. 163; Bradley v. Degnon Contracting Co., 224 id. 60, 68.)
Considering the number of /those traveling upon the public streets who find it convenient to use these pumps, I do not think it can be held as a matter of law that their use is not reasonably incident to the ordinary uses of the highway.
These pumps cause less interference to pedestrians than the drive-in stations,' because to reach such stations, the automobiles necessarily cross the sidewalks. They do not cause more interference in the street than the use of the overhead pipe we find in some places. Telephone and electric light poles are authorized upon our streets in the interest of the public, and in these days most householders find it convenient to use the g'asoline pump at the curb while traveling upon the highway.
In my opinion, the decisions in Matter of Kahabka v. Schwab (205 App. Div. 368; affd., 236 N. Y. 595) and People ex rel. Hofeller v. Buck (193 App. Div. 262) are not in point. In both these cases there was no specific delegation of power to the city by the Legislature. This distinction is apparent from the case of People ex rel. Pumpyansky v. Keating (168 N. Y. 390), where it was held that a news-stand within the street was not an unlawful obstruction because the Legislature had authorized the city to permit it, while in People ex rel. Hofeller v. Buck (supra), where there was no legislative sanction, a similar obstruction was held unlawful.
The prevailing opinion cites the case of Town of Mt. Pleasant v. *543City of New York (199 App. Div. 315) as an authority denying power in the Legislature to grant the municipal authorities the right to permit the encroachment in question. It should be observed that the encroachment in that case was the solid masonry of the aqueduct which occupied more than two-thirds of the width of the highway, and not in any sense incident to the ordinary use of the street. It may well be that the Legislature would be powerless to authorize such a structure in the highway.
It is apparent, however, that the decision in that case turned on the lack of legislative sanction permitting the encroachment. It was stated in the opinion that nothing short of clear, direct and express legislative action would be sufficient to authorize the incumbrance, and that no such authority was shown.
For these reasons, I vote to reverse the order appealed from.
Peremptory mandamus order directing the removal of the permanent pumps or structures from the public highways affirmed, with costs.