City of New York v. M. Wineburgh Advertising Co. , 107 N.Y.S. 478 ( 1907 )

Scott, J.:

Before proceeding to discuss the question- as to the validity of the “ sky sign ” ordinance, it is necessary to consider an objection raised , by defendant to the form of action adopted by plaintiff. It is argued that an injunction will not lie to enforce a municipal ordinance. As a general rule this is undoubtedly true (Village of New Rochelle v. Lang, 75 Hun, 608 ; City of Mount Vernon v. Seeley, 74 App. Div. 50), but the Legislature has the right t-o establish such , a remedy, and we think that it has done so with reference to violations . of. the Building Code in the city of New York. Before the enactment in 1897 of the first Greater. Hew York charter tbe erection of buildings in the city of New York was regulated by statute. (Laws of 1892, chap. 275.) By section. 42 of that act (amdg. Consol. Act [Laws of 1882, chap. 410], § 506) authority was given to the department of buildings to institute any “ appropriate action or proceeding at law or in equity to restrain, correct or reinove ” any building or structure attempted to be constructed in violation of the Building Law. This language seems to be sufficiently broad to warrant the institution of a suit in equity and the issuance of an injunction therein, whether restrictive or mandatory. By section 647 of the first Greater New York charter (Laws of 1897, chap. 378) the several acts in force at the time of its passage concerning, affecting or relating to the construction, alteration or removal of buildings or other structures included within the city of New York as constituted by said charter (including the above cited chapter 275 of the Laws of 1892) were continued in full force and effect, except as modified by said charter (as section 42 of said chapter 275 of the Laws of 1892 was not). It was further provided that the municipal assembly, created by the charter, should have power to establish, and from time to time amend, a code of ordinances to be known as the Building Code “ providing for all matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures erected or to be erected in The City of New York.” It was also provided that upon the adoption of sucha code the several acts relating to that subject, and by the section continued in force, should cease to have any force or effect, and should be repealed. In pursuance' of this section the municipal assembly, in 1899, adopted a “ Building Code.” Section 151 of that code is in substantially the sanie language- as section 42 of chapter 275 of the Laws of 1892, including the provision for equitable relief. By section 407 of the revised charter of 1901 (Laws of 1901, chap. 466), the Building Code as it existed on the first day of January, 1902,'“ and -all then existing laws affecting or relating- to the construction, alteration or removal of buildings or other structures within The City of New York” were declared to be binding and in force in said city, and it was expressly enacted that “ no right or remedy of any character shall be lost or impaired or affected by reason of this chapter.” These provisions have been continued by chapters 602 and 628 of the Laws of 1904, amending said section of the charter. It may be conceded, as argued by the defendant, that a municipal assembly has no power to extend the jurisdiction of - or to confer jurisdiction upon the Supreme Court, and if the right to enjoin a violation of the building law rested only upon an ordinance of the municipal assembly or board of aldermen the point would be entitled to much consideration. It seems to be quite clear, however, that the Legislature, in authorizing the municipal assembly to adopt a Building Code, intended to confer authority upon the municipal body to do that which it had power to do, and that when the Legislature provided that the building laws formerly in force should be repealed upon the adoption of a Building Code, it meant that those provisions of the Building Code, .which it was within the power of the municipal assembly to adopt, should supersede and stand in the place of legislative acts covering the same field. ■ If, therefore, the municipal assembly had no power to enact section- .151 of the Building. Code,, purporting to'provide a remedy by injunction, the section, must be treated as if it had not been included- in the code at all, and consequently section 42qf chapter 215 of the Laws of 1892,. embracing a subject not within the authority, of the municipal" assembly, and, therefore, not validly treated of by- the Building Code, remained unrepealed. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.) This view is confirmed by the language quoted above from ■ the Revised Charter of 1901, which continued in force not only the Building Code, but also all existing laws affecting the construction, alteration or removal of buildings, appropriate language to continue in force such laws as were not superseded by the Building Code. So-that wdiether section 42- of the act of 1892 was-left unaffected by the Building Code, or section 151 of the Building Code was confirmed and ratified'by the act of 1901, the right to.prevent violations by injunction still continues. It is not necessary to hold, and we see no reason for molding, that the Legislature ever intended to abolish, the speedy, orderly and convenient, remedy expressly provided by section 42 of the act of 1892, and our view in this regard is strengthened by the care with which the- Revised Charter of 1901 preserved every right or remedy of every character. We are, therefore, of the opinion that this action will lie. ' The appellant further insists that the regulation of sky signs by the Building Code was unauthorized, because the power given by the Legislature was confined' to “ matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures erected or to be erected in The City of Hew York,” and an ingenious argument is made, based upon the rule of construction nosoitur a soeiis, that by a structure as used in the charter is meant a construction in the nature of a building. It is insisted. that such a sign as defendant has erected is not in the nature of' a building,, and, therefore, not within the statute; but that, if it be held to be of the nature of a building, the ordinance limiting its' height was- never validly adopted-, because by section. 407 of the charter of 1901, the board of aldermen- is forbidden to adopt any ordinance regulating, and restricting the height of buildings, except after -public hearings, and unless such ordinance had been approved beforehand by the board of estimate and apportionment. These arguments cannot prevail. It is our duty to read statutes according to the natural and most obvious import of their language, without resorting to subtle and forced construction, for the purpose of either limiting or extending their operation. (McCluskey v. Cromwell, 11 N. Y. 593, 601; People ex rel. Kemp v. D'Oench, 111 id. 359.) According to the generally accepted meaning of. the terms, while a building is always a structure, yet many things may be termed structures which are not buildings (Chaffee v. Union Dry Dock Co., 68 App. Div. 578 ; Wingert v. Krakauer, 76 id. 34), and in numerous cases in the State the term “ structure ” has been specifically applied to billboards. (City of Rochester v. West, 29 App. Div. 125; Gunning System v. City of Buffalo, 75 id. 31; Buskirk v. O. J. Gude Co., N. Y. L. J. June 20, 1907.) It needs but to read the expert description of defendant’s sign, and to glance at its photograph, to conclude that it is essentially a “structure.” It is equally apparent ■ that this particular structure is not a building, within any sense of that word. We are thus brought to defendant’s main contention, which is that the ordinance is unreasonable and oppressive, and, therefore, void. If the ordinance is to be sustained at all, it must be because it falls within that inherent power of sovereignty which is known as the police power, meaning thereby the power of the State to preserve and promote the public welfare by prohibiting things hurtful to good order and health, morals and welfare of the people, and to establish such rules and' regulations for the conduct of all persons, and the use and management of all property as may be conducive to the public interest. The existence of this power is universally recognized, although from its very nature it is impossible to precisely define its extent and limitation. To justify an act or ordinance which in any degree interferes with the liberty of the individual, or with the full enjoyment by him of his property, it must appear by reasonable intendment that it is calculated, intended, convenient and appropriate to conserve the public health, welfare, comfort or morals, and while it lies primarily within the discretion of the enacting body to determine what laws are appropriate and proper for that purpose, yet the duty remains in the courts when called upon to scrutinize the measures sought to be enforced to see whether they really fall within the limitations of the. police power. (Matter of Jacobs, 98 N. Y. 98.) It is charged against the “ sky sign ” ordinance that it is unreasonable, in that it fixes arbitrarily and inflexibly a limit of nine feet’ upon the height of such signs without regard to the method of their construction or the height of the buildings upon which they are to be placed. And it is further insisted that it is apparent upon. the face of the ordinance that it was not adopted for the purpose of promoting the public health, comfort or welfare, and is .not calculated to achieve that purpose; that, the prohibition does not extend to structures generally erected upon roofs, but only to structures intended to be used for a- particular and.perfectly legal'purpose, so that the identical structure would be legal and authorized if not used. as a means of advertising, and become illegal and unauthorized if devoted to advertising uses: We fully recognize the force of these objections, and find much support, for them in judicial expressions. (People v. Green, 85 App. Div. 400 ; Crawford v. City of Topeka, 51 Kan. 760 ; City of Chicago v. Gunning System, 214 Ill. 628.) We do not, however, consider it necessary to pass upon these objections at this time, for the defendant has notyet placed itself in‘a position to raise them. It is perfectly well settled that it is competent for the Legislature, or a municipality acting under its authorization, to regulate the construction and erection of billboards and signs, and to provide that they be not erected, even upon private property, except upon approved plans and after the. issuance of' a license or permit by the appropriate authority. Such reserved power is strictly analogous to and indeed identical with that which justifies the enactment of. all urban building laws and codes. (City of Rochester v. West, 29 App. Div. 125 ; affd., 164 N. Y. 510 ; Gunning System v. City of Buffalo, 75 App. Div. 31; Passaic v. Paterson Bill Posting Co., 71 N. J. L. 75 ; 58 Atl. Rep. 343.) Under sections 4 and 144 of the New York City Building Code it was incumbent upon the defendant, before it could lawfully erect such a structure as it has erected, to tile plans • and specifications therefor with the superintendent of buildings and obtain a permit for such erection. To this extent the ordinance is undoubtedly valid, and with it the defendant has not complied. It is true that it appears to have filed plans and obtained a permit to erect a sign, but not the sign which it has proceeded to erect. Its plans showed a structure not more than nine feet high, and hence within the limitations of the ordinance. Such a permit, based upon such misleading plans, furnished no authority for the erection of a sign fifteen feet high, and the defendant is in no better position than if it had applied for and obtained no permit whatever. The plaintiff is undoubtedly right in contending that the defendant could not lawfully erect the sign without applying for and procuring the prescribed permit. (People ex rel. Lodes v. Department of Health, 117 App. Div. 856; City of New York v. Burleson Co., 89 id. 222.) If plans had been filed for the precise structure which plaintiff has erected, and a permit had been refused upon the ground that the structure, being a “ sky sign,” was proposed to be built over nine feet high, ' the validity of the ordinance might have been tested upon an application for a mandamus to compel the issuance of a permit. For the reasons stated the injunction was properly granted, and the order appealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham and Lambert, JJ., concurred; Clarke, J., concurred in result.

' Order affirmed, with ten dollars costs and disbursements.