People ex rel. Shelton Holding Corp. v. Goldfogle

O’Malley, J.

This is a certiorari proceeding by the relator to reduce an assessment for taxation for 1924 on real property located on the southeast corner of Lexington avenue and East Forty-ninth street in the borough of Manhattan. The property is now improved by a completed building known as the Hotel Shelton. The assessment by the order appealed from has been reduced by the value of the improvements as fixed for the year in question. Such exemption is based on section 889-a of the Greater New York Charter (as added,by Laws of 1913, chap. 324) which provides: “ A building in course of construction, commenced since the preceding first day of October and not ready for occupancy, shall not be assessed.”

As the building was concededly not ready for occupancy on October 1, 1923, the sole question is whether or not its construction had commenced prior to October 1, 1922.

A prior owner had excavated for a proposed structure not at all related to the improvement of this relator but had been forced because of financial difficulties to abandon the work. Upon such abandonment the base of the excavation was left with certain irregularities in which water accumulated. On May 6, 1922, the relator received a notice from the board of health requiring “ That all water be removed from the surface of the vacant lot and said lot be kept free from the accumulation of water thereon.”

In the same month plans for the proposed hotel had been filed by the relator with the bureau of buildings. These plans were amended several times but were finally approved and a permit issued September 14, 1922.

Prior thereto, however, the relator did certain work in and about the excavation. Its alleged reason for the commencement thereof was the order of the board of health. It applied for and it received on June 14, 1922, a permit “ to proceed with the foundation work in advance of the approval of the building plan.”

Thereafter and before October 1, 1922, the relator made further excavation for a swimming pool, constructed three rough cement walls and an inclined floor thereof, and made further excavation for an elevator pit. What is more significant, it constructed, in accordance with the proposed plans and specifications and pursuant to the authority granted by the permit in question, the concrete footings or piers designed to support the steel columns and in some of these footings placed the necessary grillage, i. e., steel “ I ” beams, bolts and pins. All of the footings necessary for the erection of the steel structure were completed before October 1, 1922.

To escape the obvious conclusion that construction had commenced before October 1, 1922, the relator offered proof tending to show that due to a shortage of structural steel during the summer of 1922, it had no intention of commencing construction until December of that year and that all work done prior to October first was to comply with the order already referred to. It is urged that if it had merely filled in the irregularities it would have had to incur further expense in removing such filling when construction actually commenced. To avoid such expense it placed the footings which could be, and were, used when the steel construction commenced.

It seems to us that with respect to these footings at least, construction had commenced prior to October 1, 1922. That which was a compliance with the order of the board of health was also a commencement of construction of the building. Having avoided the expense of filling in and taking out the filling of the irregularities in the excavation, the relator must now meet the expense entailed by the higher assessment. Granting that the choice was improvident the error was the relator’s. The placing of the footings prepared in many instances to receive the steel columns was clearly the commencement of construction of the building. That such footings were a part of the building cannot well be disputed. This conclusion finds further judicial support, inferentially at least, in People ex rel. N. Y. C. & H. R. R. R. Co. v. Purdy (216 N. Y. 704). Construction having once commenced, the subsequent interruption here disclosed was immaterial.

The order appealed from should be reversed, with ten dollars costs and disbursements, the writ dismissed, and the assessment confirmed, with costs.

Dowling, P. J., Merrell, Martin and Proskauer, JJ., concur.

Order reversed, with ten dollars costs and disbursements, the writ dismissed and the proceedings confirmed, with costs.