233 A.D. 566 | N.Y. App. Div. | 1931
The Building Zone Ordinance of the city of Syracuse provides that a building on the northwest corner of Warner and Webster avenues in that city shall have a “ set-back ” from the Warner avenue street line of at least sixteen and forty-eight one-hundredths feet. Defendant obtained a permit and proceeded to dig a cellar and build a house on this corner having a “ set-back ” of only eight and thirty-six one-hundredths feet from Warner avenue. Plaintiff Roock owns a house and lot seventy feet west of defendant’s premises on the north side of this avenue, and plaintiffs Kaufmann own the premises adjoining those of plaintiff Roock on the west. Plaintiffs’ action is to enjoin defendant from proceeding further — to compel him to tear down the portion of the building projecting illegally and for damages. At the trial, in the face of proof of special damages to the plaintiffs, a dismissal of the complaint on the merits was ordered on the ground that there was an adequate legal remedy, and from the judgment entered thereon this appeal was taken.
The permit was not put in evidence, and we have no definite information as to whether or not it authorized a construction in violation of the ordinance. Therefore, we infer that the claim of plaintiffs — as it reached the. court at nonsuit time — was that the
Cases like Southern Leasing Co. v. Ludwig (217 N. Y. 100) are not in point; for there a taxpayer, not showing any special individual damage, sought in an equity action to compel a superintendent of buildings to revoke a building permit. The remedy of mandamus was held adequate. As distinguished from cases like Brown v. Shyne (242 N. Y. 176, 181), we admittedly have prima facie proof in this action that “ private injury has been caused by danger against which the statute was intended to afford protection, and which obedience to the statute would have obviated.”
This structure, under the record before us, must be held unlawful. Whatever the fact may be as to the permit, equity is available to compel not only conformity with the ordinance nunc pro tunc but payment for the damage done to plaintiffs’ property. (Empire
The judgment appealed from should be reversed on the law and a new trial granted, with costs to appellants to abide the event.
All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellants to abide the event.