the "Everett House" in the city of New York, situated on the northwest corner of Seventeenth street and Fourth avenue, against subcontractors engaged in the construction of a portion of the subway in the city of New York, for an injunction restraining the defendants from maintaining certain buildings which are alleged to constitute a nuisance, and to recover damages arising therefrom. The special term dismissed the complaint, the appellate division reversed the order, and the defendants come here stipulating for judgment absolute in case of affirmance.

The trial judge found, among other facts: That the hotel premises have a frontage of about 128 feet on Union Square and 168 feet on Fourth avenue, are five stories high, and contain some 250 rooms, several restaurants, a café, and a bar. That the park known as "Union Square," as designated by law, extends to the northerly limit of the prolongation of the thoroughfare which to the westward of Broadway and the eastward of Fourth avenue is known as "Seventeenth Street." That so much of Union Square as is laid out as a park is of oval shape, and so situated that there is in front of the plaintiff's hotel a paved place used as a thoroughfare for vehicles, and about 150 feet wide. That Seventeenth street east of Fourth avenue and west of Broadway is 60 feet in width; the roadway being about 40 feet wide. That the defendants are subcontractors with John B. McDonald, who is the contractor with the city of New York for the construction of the Rapid Transit Railroad in the city of New York. That the defendants, as such contractors, are constructing that portion of the subway in which this railroad is to be operated, extending from Great Jones street to Thirty-Second street, and is known as "subsection No. 3." That under a permit from the department of parks of the city of New York they have erected buildings upon the paved place in front of plaintiff's hotel, and placed therein boilers, forges, air compressors, and machinery to furnish power and appliances for the prosecution of the work under their subcontract. These buildings and appliances are erected upon the space 100x120 feet, and are inclosed with board fences. The space is so used as a storage place for tools and machinery. The power generated within the inclosure is compressed air, which is conducted along the work in pipe lines. The structure is so erected as to leave in front of plaintiff's hotel a paved carriageway of the same width as is the carriageway of Seventeenth street east of Fourth avenue and west of Broadway. That the erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted, and will, during their continued maintenance, result, in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the comple

tion of the work upon which the defendants are engaged. That the work could be conducted practically as well, and with less injury to this particular plaintiff, if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work. That the aggregate damage produced thereby would not be lessened, and the loss which is now placed upon the plaintiff would be cast upon others. That the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities, under whose supervision and direction the work was to be performed. The proper authorities determined that the plant should be erected in front of plaintiff's premises. That they acted in good faith, and their exercise of discretion is not open to review. The trial judge filed a decision stating concisely the grounds upon which the issues were decided, as permitted by Code Civ. Proc. § 1022. Notwithstanding the trial judge found that the work could be conducted practically as well, and with less injury to this particular plaintiff, if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work, he further finds that the work is not being performed negligently, carelessly, or unskillfully, or in an unreasonable manner, and that no private rights of the plaintiff are trespassed upon by these defendants. There is no claim that the work is negligently, carelessly, or unskillfully performed, but this general finding that it is not carried on in an unreasonable manner is inconsistent with the specific finding that there would be less injury if the plant were placed elsewhere, or subdivided into smaller plants along the line of the work. The finding that the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities is clearly a legal construction of the city charter, the rapid transit acts, and the contracts of the contractor and subcontractors with the city of New York, and must be treated as a conclusion of law.

In considering whether the defendants were authorized by proper authority to construct and maintain the structures complained of, it is unnecessary to consider the power of the park department to grant this authority, as the appellants insist that the rapid transit acts empower the proper authorities to grant such temporary privileges as would facilitate the construction of the railroad; that such authorities were either the rapid transit commissioners, or the park commissioners, or both. In Laws 1892, c. 556, § 4, it is provided: "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and ex

cept such temporary privileges as the proper authorities may grant to such corporation to facilitate such construction." In Laws 1896, c. 729, § 39, it is provided that the board of rapid transit commissioners, "for and in behalf of said city, may acquire as in this act provided, any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of owners or abutting owners, or others including rights of owners, abutting owners, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference." These provisions vest no power in the rapid transit commissioners or the park commissioners to erect such structures as those of which complaint is made. No direct legislative authority is pointed out warranting such invasion of Union Square or the property rights of the plaintiff. We express no opinion as to the power of the legislature to authorize such an invasion of private rights without due compensation. The maintenance of these structures cannot be regarded as the enjoyment of temporary privileges conferred by the law of 1892, already quoted. These structures in a sense are temporary, as compared with buildings substantially constructed and intended to endure for years; but they are not temporary when we consider the use of that word in this particular connection. It goes without saying that none of the structures or appliances erected in the streets of New York for subway purposes are permanent in a general sense, but they are so in a special sense when they are authorized to remain until the completion of the work. If these defendants are to be engaged three years or more in completing the work they have undertaken on their section of the subway, and if these structures are to be used, among other things, as air compressors for the entire work, then they are permanent as to this contract and the completion of the work thereunder.

Assuming the facts as found, we are of opinion that the legal conclusions based thereon are not warranted. The order of the appellate division does not state that it has reversed upon the facts, and we are, therefore, to assume that the reversal was on questions of law. Code Civ. Proc. § 1338. The learned counsel for the plaintiff narrows the discussion upon this appeal by two very proper concessions: (1) That the law is settled in this state that acts which are authorized by the express enactments of the legislature and performed in good faith upon work of a public character do not render the persons performing them liable for consequential damages unless there is an absence of due care or skill in the execution of the work. (2) That in authorizing the construction of a railroad under the streets of New

York the legislature may be deemed to have authorized the performance by the rapid transit commissioners and by the contractors of such acts as are necessary to the execution of the work. These concessions embody the settled law of the state. Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195, 53 Am. Dec. 357; Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701; Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649. The plaintiff's main position is that the buildings and appliances which have been erected on the plaza in front of his hotel, some of which is part of Union Square, are a nuisance unauthorized by law, and not necessary to the execution of the work; that there is no reason for the generation of compressed air in a central plant, except that the contractors found it more convenient and economical; that, if such necessity existed, the structures should have been erected and maintained at a distance from the line of the work, and away from the residential and thickly-settled parts of the city. We are of opinion that the findings of the trial court established that these structures ought to have been placed elsewhere, or the power for the generation of compressed air subdivided into a number of small plants distributed along the line of the work. The finding in this connection that the aggregate damage produced thereby would not be lessened, and the loss which now falls upon the plaintiff would be cast upon others, is clearly inconsistent with the finding that the plaintiff sustained damages of a special nature. It is a mere matter of conjecture, unsupported by evidence, what damages would be suffered by others if the plant were erected off the line of the work. It is evident that the plant could be located in sparsely-settled districts near the river front, and not cause a tenth part of the damage that would arise in maintaining it at the point selected by these defendants, or in the heart of the residential portion of the city, like Fifth avenue, Madison avenue, or other localities that might be named. Gas houses, electric light plants, power houses, and large manufacturing establishments peculiar to city life are usually erected in localities where the damages innicted upon surrounding property are reduced to a minimum. The plaintiff doubtless must suffer the annoyance and injury from such acts as are reasonably necessary to the execution of the work, but it is unjust, and placing upon him an undue burden, to permit the erection and maintenance of this plant in front of his hotel, for the generation of compressed air, to be used along the entire line of the work undertaken by these contractors, from Great Jones street to Thirty-Second street, and which may continue for a period of three years or more from its inception.

Damages which are inflicted upon abutting property owners in the performance of public work reasonably and properly conducted are regarded as damnum absque injuria. This

exemption rests upon the necessity of the situation, and commends itself to all reasonable minds. The necessary injuries and annoyances inflicted upon this plaintiff in the proper prosecution of this work arise from the opening of the street in Fourth avenue, on the east side of his property, and the construction of the subway, by blasting, and other necessary work, involving obstruction, noise, and general inconvenience. When this portion of the work is accomplished, and the street restored to its normal condition opposite his property, the annoying situation would cease as to him. If, however, the structures of which complaint is made are to be maintained during the entire prosecution of the work on defendant's section, the plaintiff is subjected to annoyances and injuries that are neither necessary nor reasonable. It is clear that these structures, if located upon private property, would constitute a nuisance by reason of the creation of smoke, cinders, dust, gases, and disturbing noises. Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Bohan v. Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711; Booth v. Railroad Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552. In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, the court said (page 329, 108 U. S., page 726, 2 Sup. Ct., and page 739, 27 L. Ed.): "That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and, when the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance." In Booth v. Railroad Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552, the court said (page 277, 140 N. Y., page 595, 35 N. E., page 105, 24 L. R. A., and page 552, 37 Am. St. Rep.): "The use of premises for mechanical or other purposes causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property." For reasons already stated, the fact that the defendants are engaged in a public work is no defense to the charge that the structures in front of plaintiff's hotel are a nuisance. Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321, 54 Am. Rep. 664, in speaking of the immunity which the law extends to municipal corporations for the result of acts of a judicial and discretionary character, Ruger, C. J., said (page 144, 101 N. Y., page 324, 4 N. E., and page 664, 54 Am. Rep.): "When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation

In

or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guarantied by the constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences." It is to be kept in mind that the construction of the Rapid Transit Railroad by these defendants is an important public work, in which the citizens of the city of New York are deeply interested, and the courts should be careful to accord to them every legal right, in a liberal spirit of construction, avoiding, if possible, placing in their way obstacles of any kind.

We wish to be understood as deciding this case upon its peculiar facts, and not laying down any general rule as to the conduct of this subway work. It is impossible to so precisely regulate the damages as to prevent greater loss to one abutting owner than another under apparently like circumstances. What we do hold is that these defendants ought not to be permitted to continue a condition of affairs that is rapidly reducing this plaintiff to bankruptcy, when the trial court has found, in substance, that the structures of which complaint is made are not necessary for the reasonable prosecution of the work. This case presents a situation of peculiar hardship, and the plaintiff ought to be adequately compensated in damages, or the defendants should be prevented by perpetual injunction from continuing the nuisance of which complaint is made.

The order of the appellate division should be affirmed, and judgment absolute ordered for the plaintiff on the stipulation, with costs.

CULLEN, J. I concur in the opinion of Judge BARTLETT that the order of the appellate division should be affirmed, and judgment absolute rendered for the plaintiff, and will add but a few words to what he has written. It is to be premised that, although under section 1338 of the Code the order of the appellate division must be considered as granted on questions of law alone, still the disposition of this appeal is not entirely controlled by the findings of fact made by the trial court. There are first to be considered the pleadings, to see what allegations are charged in the complaint, and which of them are admitted and which of them put in issue by the answer. The findings are to be construed in the light of the pleadings, and then, if it appears that any finding necessary to uphold the judgment granted has been made without sufficient evidence to sustain it, the judgment has been properly reversed by the appellate division for error in law. Shotwell v. Dixon, 163 N. Y. 43, 57 N. E. 178. The possession, occupation, and title of the plaintiff was found by the

triai court. The complaint charged that the defendants had fenced in a part of Seventeenth street opposite the plaintiff's prem ises, and upon the said street and Union Square, a public park adjoining thereto, they had erected wooden structures with high smokestacks, which were used as machine shops, in which were operated not only forges, but an air-compressor plant to run drills and other machines, with the necessary boilers. These allegations were admitted by the answer and were found by the trial court. The court further found: "The erection and maintenance of the structure in front of the plaintiff's hotel by the defendants have resulted, and will during their continued maintenance result, in loss and injury to the plaintiff." On these findings the plaintiff made out a prima facie case, and became entitled to the relief asked, unless the defendants justified their occupation of the public street and contiguous park by authority of law, and also justified by like authority their use of the premises in such manner as would otherwise constitute a nuisance as against the plaintiff. I think the defendants entirely failed to prove lawful authority for their acts and conduct. Doubtless the construction of the Rapid Transit Railroad in the city of New York is a public work of the highest importance. I concede that for consequential damages necessarily inflicted on the property of adjacent owners by the skillful prosecution of the work there is no legal liability. But I deny that the erection and maintenance of the defendants' machine shops and power plant on Seventeenth street, opposite the plaintiff's hotel, is necessary to the performance of the public improvement, and I deny that they have been ever located at that point by legal authority. The route of the railway is along Fourth avenue. The structures the subject of this action are outside of the line of the road. Neither they nor the appliances operated therein are strictly necessary to the construction of the railroad, though undoubtedly they are very useful and advantageous in the prosecution of the work. I will also assume, without conceding, that the board of rapid transit commissioners might have adopted a plan for the construction of the railroad involving the use of air compressors in its construction, and also have locat the places where such plants should be erected. But it has neither done nor assumed to do anything of the sort. By the contract for the building of the road, which determines this question, the option rests wholly with the contractors to use such means for blasting and excavation as they may deem best, so long as they do not invade the property rights of others or create a nuisance. The defendants might employ steam drills or hand drills if they saw fit; and, if any new method were invented to-day by which rock could be more easily excavated than the means now

in use, the defendants would be at liberty to adopt it. But were it the case that power plants were necessary to the proper prosecution of the work by the defendants, the commission did not determine the points at which they should be located, much less agree to furnish gratuitously to the contractor sites for their erection. Under these circumstances I do not see how it is possible to distinguish the present case from those of Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701, Bohan v. Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711, and Morton v. City of New York, 140 N. Y. 207, 35 N. E. 490, 22 L. R. A. 241. Surely, the maintenance of a power plant cannot be more necessary to the performance of the defendants' work than an engine house is to the operation of a steam railroad, a retort house to the manufacture and supply of gas, or a steam pump to a high-level water service; yet in all these cases the structures and appliances were held to invade private rights, because, though having legislative authority for their maintenance, the legislature had not located the points at which they were to be maintained. In the last case Judge O'Brien said: "The legislature undoubtedly authorized the defendant to construct a building, and to place in it the necessary machinery to accomplish the purpose in view. But that is not the act complained of, or which produced the injury to the plaintiff's property. The wrong consisted in placing the building and machinery so near to the adjoining property as to injuriously affect it by the noise and vibration. *** If it was not possible or practicable to do that upon the land that the defendant owned, then more could have been acquired for the purpose. The legislature did not select the place for the station, but the defendant did. A general authority to raise and expend money for the purpose of extending and enlarging the supply of water and erecting the necessary structures and machinery for that purpose is neither an express nor an implied authority to construct a pumping station which adjoins the wall of another house or block of houses in such manner as to render them untenantable by the noise and vibration." Substitute for "pumping station" "power plant," and the doctrine disposes of this case. Other power plants have been constructed by contractors engaged in building this railroad on property acquired by them for that purpose at their own expense at a distance from the line of the railroad, and, it seems, in localities where their mainte nance constitutes no injury to others. It is not a question of transferring the burden from this plaintiff to the shoulders of some other landowner. In localities where foundries, factories, boiler shops, etc., are established, these power plants would work no harm. An emission of smoke that would constitute a nuisance in the city of New

York might afford no just ground for complaint in Pittsburg. The plaintiff will be compelled to bear, without indemnity, sufficient loss for the public benefit by the construction of this railroad along the side of his property adjacent to Fourth avenue. His burden should not be illegally increased.

The defendants claim further authority for the acts complained of under section 4 of the rapid transit act (chapter 556, Laws 1892): "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction." If the views which I have expressed are correct, then this section cannot be construed as authorizing the grant of any use of the park for purposes which would constitute a nuisance to adjacent owners. Moreover, the privileges authorized by the statute must be temporary. The erection of a structure and plant which is to be maintained during the time required for the construction of the whole line of railroad-approximately a term of three years-is, to my thinking, not temporary. The findings of the trial court were, therefore, in the respects which I have discussed, without any evidence for their support, and the appellate division properly reversed the judgment of the special term for error of law.

O'BRIEN, J. (dissenting). If I supposed that this case was in any sense close or doubtful, I would be content to record my vote against the views of my Brethren in silence without assigning any reasons. The learned trial judge dismissed the complaint, and held that no cause of action had been established, but the learned appellate division reversed the judgment, and held that the plaintiff was entitled to recover. That the trial court was right on the law and the facts, and that his decision is unassailable, seems to me very clear; but, since all my Brethren except the Chief Judge think otherwise, I am constrained to state briefly my reasons for differing with them.

There is no dispute about the rule of law that governs the case. The defendants are engaged in a great public work, authorized by the state and by the city, and are not liable for consequential damages to property owners unless caused by negligence or misconduct. I will not stop to cite authorities to support this proposition, since no one disputes it. The learned court below found no reason for reversing the judgment in the findings themselves, but rather in the evidence; and since it approved the findings of fact, and reversed upon the law, this court must review the case upon the findings alone. There is no dispute about this proposition.

All admit it. The question before this court, then, is a very narrow one, and is simply this: Did the learned trial judge dismiss the complaint after finding that the plant and structure in question was a nuisance? That is what is asserted by the learned counsel for the plaintiff, and that is what the prevailing opinion holds. If he has so found, then I admit that the decision about to be made by this court is correct; but, if he has not, it is wrong, since this court must look to the findings alone for reasons, and must assume that the facts found are the real and only facts in the case. Any one who will read the opinion of the trial court will see very clearly that he did not intend to find anything of the kind, and, if he has, it is evident that he has been so maladroit or unfortunate in the use of language that he has not only failed to express the thought that was in his mind, but has actually expressed just the contrary. In other words, intending to find that the thing was not a nuisance, he has succeeded in finding that it was. The learned trial judge may well be astonished to learn of the result imputed to him, and I think that at least one member of this court should defend him against such an imputation, and the best way to do that is to present the findings in his own words. Here they are: "Fourth. The construction of the Rapid Transit Railroad, in which these de-. fendants are engaged, is an important public work. The work is not performed negligently, carelessly, or unskillfully, or in an unreasonable manner. No private rights of the plaintiff are trespassed on by these defendants. The defendants are not liable for consequential damages resulting to the plaintiff from the construction of the work in which they are engaged. The erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted, and will during their continued maintenance result, in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the completion of the work upon which the defendants are engaged. The resulting annoyance to the plaintiff is temporary. The defendants occupy the public property under proper authority. Fifth. The work could be conducted practically as well, and with less injury to this particular plaintiff, if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work. The aggregate damage, however, produced thereby would not be lessened, and the loss which now falls upon the plaintiff would be cast upon others. The defendants are engaged upon a public work under public authority. The necessary and proper place for the construction of the operating plant were matters to be determined by the contractor and the public authorities, under whose supervision and direction the work was to be performed.