Mayor of Hudson v. Thorne

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Mayor of Hudson v. Thorne  (1838) 
by the Chancery Court of New York

Cite as: Mayor of Hudson v. Thorne, 7 Paige Ch. 261 (1838).

Chancery Court of New York

7 Paige Ch. 261


Decided: Sept. 18, 1838.

Court Documents
Opinion of the Court
The charter of the city of Hudson does not authorize the common council of that city to pass an ordinance prohibiting the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals shall be permitted to erect on their own premises.

Although the corporation of a city is expressly authorized by its charter to prevent or regulate the carrying on of manufactures dangerous in causing or promoting fires, it cannot make a by-law to prohibit one citizen from carrying on such dangerous business and to permit others to do so; as all by-laws made by a corporation must be reasonable.

The court of chancery will not interfere by injunction to enforce the penal laws of the state, or the by-laws of a corporation, unless the act sought to be restrained is in itself a nuisance.

THIS was an application to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson, upon a vacant lot owned by them, intended to be used as a hay press. The bill set out that part of the city charter which authorized the common council, from time to time, to pass such ordinances as they should think proper, to remove or prevent the construction of any fire place, hearth, chimney, stove, oven, boiler, kettle or apparatus used in any house, building, manufactory, or business, which might be dangerous in causing or promoting fires; to regulate or prevent the carrying on of manufactures dangerous in causing or promoting fires; to adopt and establish such regulations for the prevention or suppression of fires as might be necessary; and generally to make all such rules, regulations, by-laws and ordinances, for the good government of the city and the trade and commerce thereof, as they might deem expedient, not repugnant to the constitution and laws of the state; and to enforce the observance thereof by inflicting penalties upon any person for the violation of any such ordinances of the common council, not exceeding twenty-five dollars for any one offence. And the complainants further stated, that in pursuance of the powers so given to the common council, they did, in July, 1838, duly pass an ordinance by which, among other things, it was ordered that [p262] no person should erect or construct, or cause to be erected or constructed, any wooden or frame barn, stable or hay press, within certain specified limits in the city of Hudson, of more than thirty feet in width and thirty feet in depth, without the permission of the common council, expressed by a resolution of the board that such building was not dangerous in causing or promoting fires; and that any person who should violate such ordinance should incur a penalty of $25, and a further penalty of $25 for every twenty-four hours such violation should continue. The complainants also charged that subsequent to the passage of the ordinance the defendants had commenced the erection of a wooden or frame building, within the prohibited limits, of the length of 120 feet and of the breadth of about 48 feet, with a shed of the same length and of the breadth of twelve feet attached thereto, without the permission of the common council as specified by the ordinance; which building was to be occupied for stowing and pressing hay; that on the opposite side of the street from where the building of the defendants was being erected, and also southerly and easterly therefrom, there were numerous buildings of brick and wood compactly built, which were much exposed and liable to be destroyed by fire; and that the burning of the defendants' building would produce an immense destruction of valuable property. The complainants further charged that the erection of the defendants' building, and its occupation for storing and pressing hay, by reason of the combustible nature of the hay, the extent of the building, and its proximity to other buildings, would be extremely dangerous in causing and promoting fires, and would greatly prejudice the public interests. And inasmuch as the penalty which the complainants were authorized to inflict for the violation of their ordinance was entirely inadequate and ineffectual to prevent the erection of the defendants' building, they prayed that the defendants might be decreed to take down and remove the said building, and might be restrained by injunction from proceeding further in the erection and completion thereof, and from using the same as a hay press or barn, and from [p263] storing, pressing and keeping hay, straw, or other combustible materials in such building; and for general relief.

S. Stevens & K. Miller, for the complainants.

John W. Edmonds, for the defendants.

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