City of Brooklyn v. Franz ( 1895 )

DYKMAN, J.

This proceeding was' instituted in the city court of Brooklyn upon a petition for the removal of a frame building from the lot of the defendant in Kosciusko street, in that city. The charge against the defendant is that he has erected a frame structure within the fire limits of the city, in violation of the city charter. The statute upon which the prosecution is based is this:

“The supreme court of the state of New York, the county court of the county of -Kings and the city court of Brooklyn, shall, upon petition, respectively have power and jurisdiction to adjudge and decree that any store house, dwelling or other building that has or may hereafter become dangerous ■or insecure, or any building erected or altered, or in course of erection, or alteration, in violation of the provisions of this title shall be taken down and removed, or repaired and supported in a proper manner. Any owner, agent, lessee or occupant of any building against which a decree shall be made as hereinbefore provided, who shall neglect, refuse or fail to comply with the terms of any such decree, shall be deemed guilty of contempt and be punished as now provided by law for fké punishment of contempt.” Section 51, tit. 14, Brooklyn City Charter.

The foregoing statute assumes to confer upon certain courts the power to order the destruction or removal of any building which has or may become dangerous in violation of the city charter, and the objection raised against it is that it makes no provision for any notice to the owner of such building, or for any opportunity to be heard in the proceedings for the destruction of his property. We think the objection is well founded. The deprivation of property without due process of law is inhibited by both the federal and state constitutions. While the term “due process of law” may not be susceptible of a precise definition which will include all cases, yet it has ever been held to require an opportunity to be heard. Notice of some kind is essential, and, because there is no provision in this statute for a notice or an opportunity to be heard, it is violative of the constitutional provisions for the protection of property rights. Stuart v. Palmer, 74 N. Y. 190. The fact that notice was given to the defendant of the proceedings in this case is insufficient to meet the difficulty. To answer- the requirements of the constitution, the statute itself must confer the right to a notice. We have not overlooked the fact that there are numerous statutes in this state which subject the owners of buildings, both public and private, to many limitations and requirements, and entail upon them additional expense. In crowded cities buildings cannot be constructed, within certain districts, of inflammable materials. Fire escapes are required, and water must be introduced upon each floor of certain houses. These are but examples, and under such statutory provisions the owner is entitled to no compensation for the increased expense to which he is subjected, and no provision is made for any notice or opportunity to be heard. The-distinction is this: Such statutes only regulate the use of property, while the statute under review provides for and contemplates its destruction without compensation. The decree should be reversed, with costs. All concur.