107 N.Y.S. 484 | N.Y. App. Div. | 1907
Lead Opinion
The court by a summary order has required the appellant, the O. J. Gude Company, to remove a certain sign upon private property located on the corner of Broadway and Forty-second street in the city of New York under the provisions of certain ordinances of the .city of New York, being part of the Building Code. This order was granted on the application of the city of New York based upon a petition verified by the superintendent of buildings. The petitioner alleges that the municipal assembly of the city of New York established a code of ordinances known as the Building Code, which regulated the construction, alteration or removal of buildings or structures erected or to he erected in the city of New York, which took effect on the 23d of December, 1899, and was after-wards incorporated as chapter 15 of the Code of Ordinances of the city of New York, which was approved by the mayor on November 8, 1906. The petition further, alleges that the O. J. Glide Company was the owner of a certain structure located on the top of the-building on the southwest corner of Broadway and Forty-
In answer to this application the O. J. Gude Company submitted affidavits, from which it appeared that this sign was erected upon the roof of the building under an agreement with the owner or lessee of the building, is constructed entirely of metal, and is in all respects safe and erected in accordance with the provisions of the Building Code, except that in reference to the height above the top of the building.
The structure complained of is undoubtedly a “ sky sign ” within section 144 of the Building Code. The restrictions upon the erection of these sky signs are that they shall be constructed entirely of metal, including the uprights, supports and braces for the same, and shall not be at any point over, nine feet above the front wall or cornice of the building to which they are attached or. by which they are supported; that they shall be entirely within
The objection, however, is made that this proceeding, which is an application to .the Special Term of the Supreme Court for a .summary order requiring the appellant to remove this sign, was not authorized. This proceeding is instituted under section 506 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1892, chap. 275, § 42), which authorizes the superintendent of
I agree with Mr. Justice Scott’s opinion in the case of City of New York v. Wineburgh Advertising Co. (122 App. Div. 748), decided herewith, 'that section 506 of the Consolidation Act is still in force, and that under it the superintendent of buildings was authorized to institute any appropriate action or proceeding, at law or in equity, to restrain or correct the erection or alteration of, or to require the removal of, or to prevent the occupation or use of, the building or structure erected, constructed or altered in violation of, or not in compliance with any of the provisions of the Building Code. But the question is what was intended by the words “ any appropriate action or proceeding, at law or in equity.” Civil rights are enforced in courts either by "actions or certain special proceedings, which are regulated by the Code of Civil Procedure. The right of a person against whom a claim is made, either at law or in equity, to be confronted by the witnesses against him; to have a right to cross-examine them; and to introduce evidence on his own behalf, is carefully preserved both by the Constitution and the Codes of procedure as to thp authorized actions and special proceedings, and in an action the right to this investigation before either a judge or a jury is assured by the Constitution to any person against whom a claim is made. The ordinary meaning which would be given to the phrase “ appropriate action or proceeding ” would be to authorize the superintendent of buildings to adopt any of the recognized actions or proceedings either at law or in equity for the enforcement of the provisions of the Building Code. It certainly cannot be supposed that the Legislature by this general language intended to reverse all of the statutory rules in relation to the enforcement of claims against individuals by allowing the superintendent of buildings to institute' an entirely new proceeding by which rights to property of great value should be determined in a summary-way upon affidavit without the safeguards which have béen found to be
In relation to-the. question as to the validity of-this restriction when, applied only to advertising signs and not to a structure to be used for- any other purpose, I do not think anything more is required -than has been said by Mr. Justice Scott in the case of City of New York v. Wineburgh Advertizing Co. (122 App. Div. 748), decided herewith. My views upon this question were expressed in the case of People v. Green (85 App. Div. 400), and, were concurred, in by a majority of the court.. As I think this proceeding was unauthorized I am tin favor óf reversing the order .appealed from on that ground only, leaving the Other questions to be finally determined when they are properly presented.
Patterson, P. J., and Lambert, J., concurred; Clarke, J., dissented.
Concurrence Opinion
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.