113 N.Y.S. 855 | N.Y. App. Div. | 1908
Appeal from an order denying a motion for a peremptory writ of mandamus. The relator is a domestic corporation engaged in the business of constructing and maintaining advertising signs and displaying thereon advertisements of manufacturers, merchants and others for compensation. It desires to erect upon the top of a building in the city of Hew York a metal structure of the class known as “ Sky Signs,” and has applied to the respondent for a permit so to do. This permit the respondent has refused to issue, basing his refusal not upon any defect or inadequacy in the plans for such structure, but upon the sole ground that the proposed structure would be illegal, its illegality consisting of the fact that if constructed according to the proposed plans it will extend more than nine feet above the front wall or cornice of the building to which it is to be attached. The respondent has, therefore, refused to examine or pass upon the proposed plans. The purpose of the present proceeding is to obtain a writ of mandamus to compel him to examine and pass upon them, and if he finds them to be sufficient and adequate, to issue a permit therefor.
The ordinance upon which the respondent has based his refusal is embraced within section 144 of the Building Code of the city of Hew York, which, so far as pertinent, reads as follows: “Any letter, word, model, sign, device or representation in the nature of an advertisement, announcement or direction, supported or attached wholly or in part over or above any wall, building or structure, shall be deemed to be a sky sign?
“ Sky signs shall be constructed entirely of metal, including the uprights, supports and braces for same, and shall not he at any point over nine feet above the front wall or cornice of the building or structure to which they are attached or by which they are supported.”
Other provisions of the section require all fences, signs, billboards and sky signs to be erected wholly within the building line, and to be properly secured, supported and braced, and further require that before any such be erected a permit be obtained therefor from the superintendent of buildings.
Ho question is made by the appellant as to the right of the municipality, under proper legislative sanction, to regulate the erec
There are certain general and well-settled rules, however, which, if observed, will greatly aid in determining whether or not the police power of the State has been exceeded in any particular case. “ The power must be exercised subject to the provisions of both the Federal and State Constitutions, and the laws passed in the exercise of such power must tend, in a degree that is perceptible and clear, toward
Ingraham and McLaughlin, JJ., concurred j Clarke and Houghton, JJ., dissented.
Order reversed and motion for peremptory mandamus granted. Settle order on notice.