In re the City of New York , 107 N.Y.S. 484 ( 1907 )

Scott, J. (concurring):

I find myself constrained, although reluctantly, to concur with Mr. Justice Ingraham in the view that no legal authority can be found for the summary proceeding instituted by the city of Mew York in this matter, notwithstanding such proceedings have been resorted to for many years, and so far as I can ascertain have never before been seriously questioned. I cannot escape the conclusion, however, that section 506 of the Consolidation Act, as amended by section 42 of chapter 275 of the Laws of 1892, which I consider to be still in force (City of New York v. Wineburgh Advertising Co., 122 App. Div. 748, decided herewith), authorizes, as “appropriate” proceedings, only such actions and special proceedings as are provided for by the Code of Civil Procedure, and does not authorize such a summary proceeding as the present.

The section quoted does, however, in plain terms authorize a temporary injunction, which I think may be either restrictive or mandatory, and which should issue without hesitation where the facts are perfectly clear, or are, as in the present case, undisputed. Such a case would be presented where the structure complained of was imminently dangerous, or where it was one requiring a permit for its erection, but has been or is being erected without an attempt to secure such a permit. Such unlawful structures are prohibited under the police power of the State, and in such cases summary measures, when authorized by the Legislature, have always been sustained, and the right of trial by jury does not attach to them. (Metropolitan Board of Health v. Heister, 37 N. Y. 669.)

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.