People ex rel. Tucker v. D'Oench , 7 N.Y. St. Rep. 460 ( 1887 )

Daniels, J.:

The relator proposes to make additions to a brick building known .as 29 "West Thirteenth street in the city of New York. It is now two stories above the basement, and about forty feet in height. It is proposed by him to put on two additional stories, raising it to a height of eighty-three feet and six inches. The adjoining buildings on each side are about the same height. They have been erected with party-walls, to the expense of which the relator contributed, which appear to be sufficient to allow this addition to be made to his own building. In putting on the additional stories the material .of the front and rear walls will be brick and iron, and being free from combustible material will be without exception. But the floors of the additional stories are proposed to be made of wood, .and it is on that account that the respondent refused to issue his certificate allowing the additions to the building to be made. After such refusal an application was made to the board of examiners for permission to make the additions which the superintendent of buildings had refused to sanction. This application was made -under the authority of the consolidation act as it has been amended hy chapter 456 of the Laws of 1885, and to bring it within section .504 of the consolidation act, as it was amended by section 31 of the ¡act of 1885, it was stated in the relator’s petition to the board that an equally good and more desirable form of construction can be and is proposed to be employed by him than that provided for in other sections of the act. The examiners, in their action upon the petition, by a vote of five to two, resolved to grant the petitioner’s application, allowing him to make the additions to his building in the manner already mentioned. The superintendent of buildings was a member of the board, and one of the persons voting against the allowance of the application, and afterwards declined to issue the certificate, notwithstanding the vote which had been given in favor of the applicant. And it was to oblige him to issue the necessary certificate sanctioning the additions proposed to be made to the building that the application followed for the mandamus that was denied by the order from which the appeal has been taken, and whether the superintendent was legally right in his refusal to act is the point upon which the disposition of the appeal must depend.

By section 492 of chapter 410 of the Laws of 1882, as amended by section 21 of chapter 456 of the Laws of 1885, it was provided that buildings afterwards erected in the city of New York, exceeding seventy feet in height, should be fire-proof with brick walls and wrought or cast iron beams, or wrought iron columns with wrought iron beams, and filled in with what would be fireproof materia] between the beams. And by section 498 of the act of 1882, as it was amended by section 27 of the act of 1885, it was declared that no building, already erected, should be enlarged^ raised, altered or built upon in such a manner that, were such building wholly built or constructed after the passage of this act, it would be in violation of any of the provisions of this title. These two sections required the additions proposed to be made to tire relator’s building to be constructed substantially in the manner described therein, which would render it fire-proof. It was, however, provided by section 504 of the act of 1882, as it was amended by section 31 of the act of 1885, that the superintendent, with the consent and approval of the board of examiners, should be at liberty “ to vary or modify the provisions of this title, upon application therefor in writing only in case of alteration of old buildings, or the use of party-walls, belonging to different owners, where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety-secured and substantial justice done.” But the relator did not proceed under this portion of the section ; neither could he do so, for that required the concurring action of both the superintendent and the board of examiners. "What he did do was to apply under the succeeding portion of the section which declares that ‘‘ in cases in which it is claimed by an owner in person, or by his representative, that the provisions of this title do not directly apply, or that an equally good and more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present a petition to the board of examiners and may appear before such board and be heard, and said board shall consider said petition in its regular order of business, and, as soon as practicable, render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and their decision slialL be final. If siich decision is favorable to said petitioner a certificate shall be issued by the superintendent of buildings in accordance therewith.” It was stated in the petition that the provisions of the act did not apply directly to the case of the petitioner, but no facts were disclosed which would render it inapplicable. The sections already referred -to, on the contrary, show that they were applicable to the case of the petitioner, and by clear language included and controlled the additions proposed by him to be made to his building. From this part of the section, therefore, he could derive no possible advantage, and the case remained to be considered upon the affirmation that an equally good and more desirable form of construction can be and is proposed to be employed by him. No evidence seems to have been taken by the board of examiners in support of this affirmation, but the board acted upon the petition itself, and the answers returned by the relator to the questions presented to him, accompanying his application for liberty, to make the 'additions to his building, and by those answers the fact was clearly disclosed that the floors designed to be added in carrying up the building are to be constructed of wood, and it was such floors that the board of examiners must have considered in the vote taken by its members, to be a more desirable form of construction than that prescribed by the preceding sections of this act. This was very clearly a misapprehension on the part of the voting majority of the board of examiners, for it wiH readily be seen that a construction of the floors by beams and lumber is not equally as good or more desirable than a construction in the form prescribed by the provisions of the statute, requiring that to be of iron and other fire-proof material. The statute conferred no authority on the examiners to allow combustible material to be used in place of the incombustible substances mentioned and referred to in its preceding sections. It was entirely obvious that it was not the intention of the law to allow the examiners to permit wood to be used in place of fire-proof material; but what was intended was that they might permit some other substance to be used which should appear to be equally as good, if that could be found, and more desirable than the iron and brick previously mentioned. What that might be was not defined by the act, but this part of it was enacted in such flexible terms as to include such material if it should afterwards be discovered or found. It ivas not to permit the mode of construction allowed before this law was enacted to be followed in the erection or the extension of so high a building, but still to require that to be made fire-proof, either by employing the material already prescribed or some other that might afterwards appear to be equally good and more desirable. But, in any event, the building has been required to be made fireproof. No such mode of constructing the additions to the building was made to appear before the examiners; hut what they were applied to for was liberty to construct the internal portions of the additions with wood, and the right to do that the statute did not include within the authority conferred upon the examiners. It gave them no power to extend liberty to the ajiplicant to make the additions of wood and timber, but only to allow such additions to be made in an equally good and more desirable form of construction than that previously mentioned in the act. And it was to ascertain whether the additions could be made in an equally good and more desirable form of construction, but still of fire-proof material, that the board were empowered to hear the petitioner, and upon that hearing were to consider the petition and render a decision thereon which should be final. Not that the preceding mode of construction, which it was the object of the statute to disapprove and condemn, should be restored and used, but whether the additions could be made fire-proof in some equally good and more desirable form than that which the legislature by the act described. This inquiry the examiners evidently failed to pursue, for there was nothing before them upon which they could say or decide that an equally good mode of making the additions had been mentioned and described by the petitioner, to that previously prescribed by the statute; and having nothing before them sustaining that inquiry, or a decision to be made upon it, what they did do was without the authority of the law, and although they made the decision which they did, as it was without authority, it was beyond their jurisdiction and of no force and effect by way of supporting the application which was made for the writ.

Before they could extend this liberty to the petitioner, it was necessary that they should have some evidence before them, even though it might be slight, that the manner in which it was proposed to make the additions was equally as good and more desirable than that mentioned in the statute, which consisted in the use of incombustible materials. They had no such evidence, and the decision which they made was, for the want of it, without jurisdiction. (Staples v. Fairchild, 3 Comst., 41, 46; Van Alstyne v. Erwine, 1 Kern., 331, 370; Skinnion v. Kelley, 18 N. Y., 355, 356; Frees v. Ford, 2 Seld., 176-178.) And this want of jurisdiction deprived the vote or resolution of the board of all authority, even when it may be brought in question, as it has been now, in a collateral proceeding. (Roderigas v. East River Savings Institution, 63 N. Y., 760-764; Cagwin v. Town of Hancock, 84 id., 532-571; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id., 526-530.) And as the decision of the examiners was without authority of law and not within the power by the statute committed to their jurisdiction, as long as it gave them no authority to substitute combustible for incombustible material, it failed to support the application for the writ of mandamus, and the order should be affirmed, with costs.