Supreme Court, August, 1904. [Vol. 45. trine of Herkimer County Light & Power Co. v. Johnson, 37 App. Div. 257, and People ex rel. National Starch Co. v. Waldron, 26 id. 527, which he asserts is conclusive in the case at bar, he determines that these switches, wires and meters are real estate subject to assessment as such, and although he finds the value of same to be but about $24,000, yet, because no objection had originally been taken to the action of the commissioners in fixing the amount at $80,000, he, the referee, is prohibited from entering upon the question of the quantum of the assessment, and hence the original amount must stand. I cannot find myself in consonance with either of these views. In my judgment, under the facts revealed by this record, the declaring of these mere incidents to the conduct of this relator's business to be real estate situated as the learned referee reports them to have been, not upon property owned by it, but upon the lands of the individuals to whom it was supplying electricity, was a pure fiction, without support of any law that I have been able to find or apply. What is and what is not real estate may perhaps be a somewhat unsettled question, but in my judgment it is carrying theory too far to make the holdings of a citizen real estate while a municipality is predicating a tax upon it, and then, after that operation is complete, to have that which was declared tangible enough for that purpose in every other aspect utterly fail to stand any other test, and, as far as substantiality is concerned, vanish into thin air. In applying the doctrine of the two cases quoted above, I am of opinion that the learned referee failed to differentiate between the case where these wires, switches and meters were upon the property owned by the relator, when it may well be this doctrine would have considerable force, and on the other hand, where they are found (as in the case at bar) to have been installed upon properties not owned by relator, but by the citizens to whom they were supplying their product. Certainly such a doctrine cannot be applied in such a case. These effects must be clearly denominated personalty if the ownership is to be found in the relator. And being such, this case shows they have already been taxed for same. If they are to be called fixtures that are attached to the realty Misc.] Supreme Court, August, 1904. in such a way as to forbid their removal without damaging or working injury to the fee, and the intention was to make them fixtures, then in all accepted law they belong not to this relator, but to the owner of the fee of the several properties upon which they have been placed. In either event, this assessment cannot stand. It was a void and illegal assessment, and being such, it did not require that objections to same should be filed, but is subject to attack at any time without the filing of preliminary objections. It, therefore, follows that so much of the report, findings and conclusions of the referee as fixes the assessment of the relator as to its personalty at $364,508 should be confirmed, and that portion of same as establishes as valid the assessment of $80,000 on the cables, etc., as real estate is not approved, but is set aside, and the said assessment as originally fixed by the respondents herein is vacated and set aside. Ordered accordingly. CHRISTIAN SAUTTER, Plaintiff, v. THE UTICA CITY NATIONAL BANK, and AMBROSE B. STANARD, Defendants. (Supreme Court, Oneida Special Term, August, 1904.) Erection of a building, the columns on the face of which project into a city street - Power of the legislature to authorize a city to permit it- When an adjoining abutting owner is not entitled to enjoin its erection. A corporation proposing to erect, on a lot abutting upon a street in the business section of a city, a bank building, the plans for which involve the erection, as a part of the front wall of the building, of five columns extending beyond the face of the wall into the street for a distance varying from twenty-three and threesixteenths inches to sixteen and one-half inches, will not be enjoined from encroaching upon the street with the columns at the suit of the owner of an adjoining store building, where it appears that the street was originally a state road created by an act of the legislature, that the title of the abutting owners extends only to the street line, that the portion of the sidewalk left unobstructed by the projecting columns is of ample width to accommodate the public needs, that the common council of the city, pursuant to a Supreme Court, August, 1904. [Vol. 45. provision of the city charter, authorizing it to permit the use of sidewalks for business purposes which do not interfere with the public use and to permit "columns, pilasters and ornamental portions of any building to encroach upon any street," adopted a resolution permitting the corporation to allow the columns to encroach on the street for a distance of not more than twenty-four inches and stating that the projecting columns "would not interfere with the reasonable and substantial use of said streets," unless it appears that the complaining property owner has sustained private and peculiar injury therefrom, and that such injury is substantial and not merely nominal. The consent of the common council to allow the columns to encroach upon the street, having been given pursuant to the authority of the legislature concerning a highway created by the latter body, such consent had the same effect as though the legislature itself had authorized the encroachment; such a delegation of power by the legislature is proper. Tms action was brought to restrain the defendant bank, as owner, and its codefendant, contractor, from the alleged occupation of a portion of the sidewalk, on the westerly side of Genesee street, northerly of and contiguous to the premises of the plaintiff. Lindsley & Mackie, for plaintiff. J. De Peyster Lynch and Thomas S. Jones, for defendants. ROGERS, J. Genesee street, in the city of Utica, extends in a southerly direction from the Mohawk river to and beyond the city limits. Its width, as actually used, from building line to building line, is from ninety-seven and two-fifths to ninety-seven and nine-twentieths feet. On either side from Bagg's square to the Erie canal, the street is and for many years has been occupied by buildings for business purposes, as shops, stores, banks and offices, substantially, in a line and fronting upon the margin of the street. The title of the abutting owners extends only to the street line. It is the most important business street of the city. The street does not appear to have been laid out by the local authorities, nor is it recorded in any book of highways of the city, or of the village or town which preceded it. It Misc.] Supreme Court, August, 1904. was originally a "State road" created by an act of the Legislature (L. 1794, ch. 29), passed March 22, 1794, entitled "An Act for laying out and improving a road from old Fort Schuyler, to the Genesee River." The act appointed commissioners to lay out the road and directed that it be laid out six rods wide, but they were not required to open and improve the same above four rods in width, and the whole when laid out should be considered as a public highway, and not altered by the commissioners of highways of any town or county through which it should run. The law also provided for the payment of damages where any part of the road should be laid out through inclosed or improved lands. In February, March and April, 1902, the defendant bank acquired title to three parcels of land, each nineteen feet wide and sixty-five feet deep, extending from the westerly -- argin of Genesee street to Burchard street. They were then occupied by buildings and numbered 108, 110 and 112, and had been used as stores for many years the store No. 112 having been occupied by the plaintiff as tenant for twenty-three or twenty-four years for the sale of boots and shoes at retail. November 5, 1901, plaintiff's wife, Beata Sautter, purchased the premises next southerly of No. 112, being No. 114. The lot was nineteen feet front and sixty-five feet deep, and the building thereon had been for a long time before used as a store. During the spring and summer follewing, the plaintiff, or his said wife, erected a four-story building, having walls of the frontage and depth of the lot. The first floor was fitted for a boot and shoe store, with plate-glass show windows in front and a glass door in the center. At the second story was a bow window extending cut in front of the wall and over the sidewalk, a distance. of two feet three and one-half inches. There was also a sign twelve feet and two inches long, about two feet wide, suspended seven and one-half feet above and across the sidewalk. Both bow window and sign were removed before the trial of this action. In September, 1902, the plaintiff moved his stock of Supreme Court, August, 1904. [Vol. 45. goods into said store, where he has since carried on and still continues his said business. November 4, 1902, said Beata conveyed said premises to the plaintiff. The defendant bank, about the time it acquired title to said parcels, Nos. 108, 110, 112, procured plans and specifications and made a contract with the defendant, Stanard, for the erection of a banking house and office building thereon of stone, brick and terra cotta, having steel beams, girders and joists, fifty-seven feet front, sixty-five feet deep, and one hundred and fifty feet high, divided into ten stories, for $113,900-the first floor for a banking house, to be occupied by the Utica City National Bank, and the other floors for offices. The buildings on said lots were removed during the spring and summer following and the work of construction begun. As designed and subsequently constructed, the front wall is built upon the building line of the street. There are buil into and made a part of the front wall five columns, each resting on a pedestal, one-half being in front of the face, and the other half, apparently, within the wall and extending up thirty-one feet, where it is surmounted by a cap or scroli stone. The base stone of the pedestal extends twenty-three and three-sixteenth inches from the face of the wall, is fiftyfive and one-half inches wide, and eight and one-fourth inches thick. From this stone up to a point of five feet three-fourth inch above the sidewalk, the pedestal varies in size. The projection of the stone, next above the base, i seventeen and three-eighth inches from the wall, and is capped by a stone about eight inches thick, projecting nineteen and thirteen-sixteenth inches, and on top of this is another stone six and one-fourth inches thick and projecting seventeen and seven-sixteenth inches. From the pedestal up, the column is constructed of stone one foot eight inches thick, half round, representing a diameter of thirty-nine inches at the bottom and tapering to thirty-three inches, giving a radius and consequent projection, varying from nineteen and one-half to sixteen and one-half inches. One of these columns stands at the southeast corner of the build |