The opinion of the court was delivered by
Reed, J.It is necessary to consider but one of the objections urged against the validity of this ordinance, and that is the one grounded upon the absence of notice to the prosecutor of the time, place, passage and character of ordinance which the common council proposed to pass.
By the facts admitted in the case, it appears that the encroachments at which the ordinance is directed, consist of property which has been in possession of the prosecutor for over twenty-five y ears, and until recently occupied by him as a store, public hall and offices. These buildings were recently consumed by fire.
The only notice which-he had of any proposed meeting of the common council, was a request made to him as mayor of the borough, by the six members of council, to call a special meeting of common council for that night. He refused to comply with the request.
*129He had therefore no positive notice of the meeting, and no notice at all that the meeting designed to adjudge that his property was a nuisance. The place where these obstructions were alleged to exist was not a street de facto. So far as appears, it had never been used as a part of a street. It is a doctrine too well settled in this court for discussion, that the t rights of the property-owner, in such instances, cannot be affected without affording him an opportunity to be heard, and further that the power of the common council to prevent and remove all encroachments in or upon any street (Pamph. L. 1871, p. 780, § 4,) is only a police power, and does not extend to cases of a doubtful or uncertain nature, and which require to be first lawfully determined. State v. Jersey City, 5 Vroom 31; State, Marshall, pros., v. Street Comm’r of Trenton, 7 Vroom 287.
Let the ordinance and all proceedings under it be set aside, with costs.