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especially where there is no finding or proof that the plaintiffs have suffered, or will suffer, any pecuniary damage or material or irreparable injury by reason of the erection of such windows. Such a finding can hardly furnish a basis for judicial action and is, we think, too uncertain to justify this court in interfering with the decision of the court below. An interference with the view from the plaintiffs' windows would not entitle them to the relief sought." Page 172.

"What the law sanctions and authorizes is not a nuisance although it may cause damages to individual rights and private property." Per Earl, J., Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 107.

The public, represented by the common council, make no complaint because of the encroachment. The only party thus far challenging the right of the bank to erect the columns is the plaintiff, and he does not represent the public.

Moreover, before he can recover in this action, the plaintiff must establish, not only that the erection complained of is a public nuisance, but that he sustains private and peculiar injury an injury which is substantial-not merely nominal. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Adler v. Metropolitan El. R. Co., 138 id. 173; Wakeman v. Wilbur, 147 id. 657; O'Reilly v. New York El. R. R. Co., 148 id. 344; Ackerman v. True, 175 id. 353, 361.

In the Fort Plain Bridge case, Judge Mullin, writing for the court, said: "But assuming that it is a public highway, and that the bridge is an obstruction to navigation, and therefore a public nuisance, yet no one has the right to abate it, or sustain an action for damages occasioned by the erection, unless he has himself sustained some damages not sustained by the rest of the community." Page 62.

66

In the Adler case, Andrews, Ch. J. says: The authorities are numerous that special injury is an indispensable condition to the maintaining by a private person of an action to abate or restrain a public nuisance." Page 180.

In the Wakeman case, Judge O'Brien says: "The obstruction of a public highway is an act which, in law amounts to a public nuisance, and a person who sustains a private and peculiar injury from such an act may maintain an action to

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abate the nuisance and to recover the special damages by him sustained. The extent of the injury is not generally considered very important. It should be substantial, of course, and not merely nominal. * * * When the damage or injury is common to the public and special to no one, then redress must be obtained by some proceeding in behalf of the public and not by a private action." Pages 663, 664.

In the Ackerman case, the citation from Judge O'Brien's opinion is quoted with evident approval. Page 361.

In the O'Rielly case, the complaint was dismissed and an injunction denied, because of a "failure to prove substantial monetary damage."

What injury has come to the plaintiff?

No part of the bank building occupies or overhangs any portion of his land; he is not deprived of access to the street, nor of light or air. Both buildings face the east; the bank building is at the north, and neither it nor the encroaching column can cause so much as an offending shadow to be cast upon the plaintiff's property at any hour of the day in any season of the year.

It is not shown that the plaintiff's sales have been diminished to the extent of a single dollar, nor that any customer has failed to find or been deterred from coming to his store by reason of the defendant's building. On the other hand, it is quite probable that being a conspicuous structure, occupied by many tenants whose business necessarily brings many other persons there, and as a banking-house to which the patrons must frequently resort, the building will increase the plaintiff's trade and profits.

It is true that to a person approaching the plaintiff's store on the sidewalk from the north, the line of vision will not strike his show windows quite so soon as if the base and pedestal of the southerly column were not there.

That a proper display by a merchant of his wares tends to attract buyers is self-evident, but it is not apparent that this slight obstruction of the view of the window at all shuts out the view of the goods inside. Ordinarily the most favorable point from which to see through a window is a convenient distance from and at right angles to the glass, but as the

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angle is lessened the ability to see through is likewise diminished.

The law of the reflection of light from polished surfaces is well known: The reflected ray lies in the plane of incidence and the angle of reflection is equal to the angle of incidence.

So it appeared, in the case at bar, from observations made south of the plaintiff's store, at points about the same distance from the face of the wall and the store, as those made on the north side, that little, if any, difference existed be tween the two sides as to seeing into the store. The circumstance that the projecting columns are the same distance in front of the wall of the defendant's building as the plaintiff's is significant. The view of the bank front from the sidewalk is obstructed just as much as the plaintiff's; indeed, more. The bank has five columns, and the plaintiff complains of but one. It cannot be conceived that intelligent, experienced men

as the officials of the bank may be assumed to be - have so constructed their building — expending the large sum of money which it cost as to repel rather than attract passers-by. If they have not done it for themselves they have not done it for the plaintiff.

Even though the column does offend the eye of the plaintiff, or is otherwise distasteful to him, he must endure the objectionable structure as a part of the price he pays for living and doing business in a thrifty, prosperous city.

"The compromises exacted by the necessities of the social state, and the fact that some inconvenience to others must of necessity often attend the ordinary use of property, without permitting which there could in many cases be no valuable use at all, have compelled the recognition, in all systems of jurisprudence, of the principle that each member of society must submit to annoyances, consequent upon the ordinary and common use of property, provided such use is reasonable, both as respects the owner of the property, and those immediately affected by the use, in view of time, place and other circumstances." Per Andrews, J., Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10.

From what has been said the conclusion follows:

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1. That the structure complained of is not a nuisance. 2. That the plaintiff suffers no substantial damage by reason thereof; and,

Finally, that the complaint should be dismissed upon the merits; but because of an order made, permitting the service of a supplemental answer, it must be without costs.

Judgment accordingly.

JOEL GOTTSCHALL, as Administrator, Etc., Plaintiff, v. THE GERMAN SAVINGS BANK, in the City of New York, Defendant.

(City Court of New York, Special Term and Chambers, August, 1904.)

City Court of New York-Power of, to proceed with an action in which an interpleader has been ordered under section 115 of the Banking Law.

While the City Court of New York has no power to proceed with an action after the entry of an order of interpleader granted under section 820 of the Code of Civil Procedure, it has power to grant an order of interpleader and proceed with the action when the order of interpleader is granted under section 115 of the Banking Law in an action brought against a savings bank to recover money on deposit.

MOTION by the defendant, The German Savings Bank, in the city of New York for an order substituting Mary Gottschall as a party defendant in its place and stead. The claimant, Mary Gottschall, claims the same fund as the plaintiff.

Amend & Amend, for defendant bank, for motion.

Delamare & Morrison, for plaintiff, opposed.

M. S. & I. S. Isaacs, for claimant, Mary Gottschall, opposed.

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SEABURY, J. While this court has no jurisdiction to proceed with an action after the entry of an order of interpleader, under section 820 of the Code of Civil Procedure, it has power to grant a similar motion and proceed with the action under section 115 of the Banking Law, when the action is against a savings bank to recover money on deposit. This statute expressly confers power upon "the court in which the action is pending" to exercise this jurisdiction. The motion is granted except in so far as it seeks to compel the delivery of the pass-book at this time.

Motion granted except in so far as it seeks to compel delivery of pass-book at this time.

SAMUEL HERTZ, Plaintiff, v. STEPHEN MCDERMOTT, Defendant.

(Supreme Court, Kings Special Term, September, 1904.)

Police interference with a hotel by stating that it is a disorderly house, enjoined.

Upon a motion for an injunction pendente lite made in an action brought by the owner of a small hotel in the city of New York against a police captain in that city to restrain the latter from trespassing upon and interfering with the conduct of the hotel, it appeared, without dispute, that for a period of several months the defendant kept policemen constantly stationed in front of the plaintiff's hotel which complied with all the legal requirements; that such policemen, by the defendant's orders, called out to all who offered to enter the hotel that it was a disorderly house liable to be raided at any moment and that all persons caught therein would be arrested and locked up; that such policemen would also go inside the hotel and make the same announcement in the dining room thereof; that they would follow persons into the hotel and order them out and would sometimes take hold of them and eject them; that they accorded this treatment to men and women unaccompanied and also to men and women in company; that they would also go through the hotel at night and arouse the lodgers and demand their names and require them to give an account of themselves.