123 N.E. 379 | NY | 1919
The head of the department of health of the city of New York is the board of health. (Charter [Laws of 1901, ch. 466], § 1167.) The sanitary code enacted by the board of health provides (§ 220) that no person shall conduct a private hospital without a permit therefor issued by the board of health. The regulations of the department of health provide that the proposed site and sanitary condition of the hospital building shall be subject to the approval of the department of health. The charter of the city provides (§ 1172) that "the board of health may embrace in said sanitary code all matters and subjects to which, and so far as, the power and authority of said department of health extends, not limiting their application to the subject of health only." The board has general jurisdiction over the establishment and maintenance of hospitals, including the licensing of hospitals. On an application for a permit, it should consider and give *212 proper weight to all the ordinary contingencies and circumstances appropriate to the subject which require the exercise of discretion The element of location may be material. The effect of a proposed location on property values in the neighborhood need not be wholly disregarded and may even become decisive in a case otherwise doubtful. But the authority now conferred on the board does not include, expressly or by reasonable implication, the power to refuse a permit, as has been done in this case, when all other conditions are satisfactory and no offense to the senses is suggested, for the exclusive reason that "considerable damage would accrue to the surrounding property if the permit were granted." That reason considered alone came not legally within the scope of its discretion. The property rights of one owner may not be subordinated to the property rights of his neighbors, except as an incident to the exercise of authority reasonably conferred for the general welfare.
The question of legislative power wholly to exclude hospitals, such as hospitals for contagious diseases or for the treatment of inebriates or the insane, from particular places, such as thickly populated or fine residential districts, is not before the court.
The action of the board was, as the law now exists, unauthorized and, therefore, unreasonable and arbitrary, the relator's remedy is mandamus (People ex rel. Lodes v.Department of Health, N.Y. City,
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Order affirmed. *213
