30 N.Y.S. 349 | New York City Court | 1894
By section 51 of title XIY of the revised! charter, this court has power to decree that any building-erected in violation of the provisions of such title shall be taken down and removed. In the year 1890 the respondent, erected frame buildings on lots on Butler street between Fourth and Fifth avenues in this city, and subsequently, about
The sole question to be considered is whether or not the common council can permit the erection of frame buildings within the fire limits. It seems to me to be very clear that the common council has no such power, and the only reason that the courts have not so held is that the city authorities did not take action, but quietly allowed the law to be violated.
The weight of authority is to the effect that the city authorities have power, under the general welfare clause, to establish fire limits, and to prohibit the erection of frame buildings therein, though in city charters granted in this state special power is given so to do, and such has been the custom in other states. Tiedeman Mun. Corp. § 130. I have hastily examined many charters, and find that there is no uniform method as to the establishment of fire limits. In New York city (Laws 1892, chap. 275, § 31) the fire limits are defined by an act of the legislature, and the board of aldermen have no power in relation thereto. In Buffalo power is given to the common council to fix the inner fire limits, and also the outer limits. In the inner limits frame buildings cannot be erected, • and in the outer limits they may be erected by special permission of the common council. Laws 1891, chap. 105, § 17, subd. 5. In Syracuse the legislature prohibited wooden build
In the charter of this city, by section 3 of title XIV (Laws 1888, chap. 583), it is provided that the building limits, within which all buildings thereafter erected should be of material other than wood, shall comprise the fire limits as established by law, or as they may be extended by the common council, and no buildings of wood should thereafter be erected within such limits. The provision in our charter is substantially the same as in the charter of Albany, supra. In the charter of Brooklyn the common council has the special power delegated to it “ to enlarge the fire district ” (Laws 1888, chap. 583, § 12, subd. 7), and, after the special powers of the common council are set forth, we find the clause of general welfare, which has come down to us, with amendments, from the original charter. Laws 1834, chap. 92, § 27.
In the year 1835 the common council of Brooklyn was authorized to set off a certain district within which all buildings should be erected of other material than wood." Such district was, however, in the first instance, restricted by the act to the following bounds : Beginning at the intersection of
It appears, as before stated, that, by chapter 858 of the Laws of 1866, the,legislature of this state designated the fire limits of the western district, and provided that the common ■council might extend the same, and' that no frame buildings should be erected in the limits as designated or as extended, and it further appears that, by the charters of 1873 and 1888, the building limits comprised the fire limits as established by law, or as such limits should be extended by the common council, and the erection of wooden buildings therein was pro
It is contended by the counsel for the respondent that, under the clause of general welfare, the common council had the power to grant the permits in evidence. If we leave out of our consideration the provisions in the charter as to the department of buildings just referred to, and turn to the powers specifically granted to the common council, the respondent is in no better position. By subdivision 7 of section 12 of title II, the common council has power to enlarge the fire district, and section 13 is the clause of general welfare. I quote from Endlicli on the Interpretation of Statutes (§ 399), which lays down the proper rule of construction in such a case.
The maxim exjpressio unius eat exclusio alterius applies, indeed, wherever an act contains general provisions and also special ones upon a subject, which, standing alone, the general provisions would include. In such cases the special provisions upon that particular subject indicate an intention that it is not to be included in the general provision, and the latter is held inapplicable to it, or, as it is sometimes said, is controlled by the special provisions. § 399, Endlich Interp. Stat. See, also, Pretty v. Solly, 26 Beav. 606.
When the legislature gave .the common council power to enlarge the fire district I am of opinion that it thereby prohibited that body from doing the opposite. The legislature considered what powers should be given on the subject to the common council, and determined that it might enlarge, but not reduce, the fire district. The subsequent general clause as to their powers, by which that body might pass an ordinance for the general welfare, did not confer the right to interfere with the fire limits, because the subject had been considered in fixing their special powers. Flanagan v. Hol
The counsel for respondent claims that his client, by reason of the consents obtained and the lapse of time, has vested rights. The difficulty is that he never had any rights to vest. A similar case arose in Hew York city, where the dock department attempted to lease piers with sheds erected in violation of the fire laws. Judge Earl in that case said (N. Y. Fire Dep't v. Atlas Steamship Co., 106 N. Y. 566, 577): ' “ The ■defendant, by its lease of the pier from the dock department, was not authorized to violate the building laws applicable to the city. Ho department or officer of the city government could enter into a valid stipulation with the defendant by which it would be authorized to violate any law enacted for the public safety.”
I am also of opinion that the ordinances of the common council, giving consent to the respondent to erect frame buildings within the fire limits, are void as unjustly discriminating between one citizen and another. The resolutions do not purport to reduce the fire limits, but are simply permits. They allow one citizen in a block to do an act which is penal if done by any other citizen in the same block. Special discrimination by ordinance is not allowed. Dillon (4th ed.), § 322, and cases cited.
A decree will be entered requiring the respondent to take down and remove all the frame buildings on the lots in question. A reasonable time to comply with the decree will be allowed. Findings and decree to be settled on June twenty-ninth at ten a. m.
