Majority
p. 164FIRE DEPARTMENT OF N. Y. v. BEAUDET. N. Y. Supreme Court, First District, Special Term, at Chambers; May, 1888.
Headnote
Injunction under fire laws.] Since the amendment made by L. 1887, c. 866, § 81, to the statute authorizing injunctions against violations of the fire laws,—the injunction should, not forbid all further progress of any work on the premises, but only the further progress of the violation complained of.**L. 1882, c. 410, § 506, as originally enacted, is as follows: “All courts of civil jurisdiction in the City of New York shall have cognizance of and jurisdiction over all suits and proceedings by this title
p. 165
authorized to be brought for the recovery of any penalty and the enforcement of any of the several provisions of this title, and any court of record in said city, or any judge or justice thereof, shall have power at any time after the service of notice of the violation of any ■of the provisions of this title, and upon the affidavit of the inspector of buildings, to restrain by injunction order, the further progress of any violation named in this title, or of any work upon or about the building or premises upon which the said violation exists.”
As amended by L. 1887, c. 566, § 81, it reads thus: “Anycourt of record in said city, or any judge or justice thereof, shall have power, at any time after the service of notice of the violation of any of the provisions of this title, and upon the affidavit of the superintendent of buildings, to restrain by injunction order, the further progress of any violation named in this title, and no undertaking shall be required as a condition to the granting or issuing of such injunction or by reason thereof.”
Motion for injunction.
The plaintiffs, pending their action to recover penalties -of the defendant for violating the Fire and Building laws, applied for an injunction order restraining the defendant, his agents, servants and employees from continuing work -on premises which plaintiff alleges were being erected in violation of the plans and specifications submitted to and approved by the Fire Department, in that a portion of the front thereof comprising oriel or bay windows were being built to project into the public street for a distance of about two feet, in violation of the law.
The ordering part of the temporary injunction granted pending the motion, was as follows:
. “ And until after the argument and decision upon this •order to show cause, and until the further order of this ■court, you, your agents, servants, workmen and employees, and the agents, servants, workmen and employees of each and every one of you, are hereby commanded to refrain from doing any further work, or causing any further work to be done in, upon or about the building and premises above ■described; and in case of your disobedience of this order,
p. 166
you will be liable to the punishment therefor prescribed by law. Service of a copy of this order on or before the1
day of , 188 , shall be sufficient.”
Defendant in an affidavit denied that the construction of the oriels was a departure from the specifications, and contended that even if they were not in the specifications it was unnecessary to show them on the plans, but only to show the arrangement of the floors and apartments and general structure thereof, and not the architecture of the-exterior. That the buildings, during erection, were regularly inspected by officers of the plaintiff as often and ' oftener than once a week, without objection until the completion of the oriels. That they only project lé-¿ inches,.- and are merely ornamental parts of said buildings which do not form encroachments upon public streets, although they may project a short distance beyond the main line of the-buildings themselves.
William L. Findlay,
attorney for the plaintiff, relied on-the case of Fire Department of N. Y. v. Atlas Steamship Co., 106 N. Y. 566 , and referred also to Fire Department v. Brien, N. Y. Supreme Court, Dec. 1885; Same v. Stern, N. Y. Supreme Court, June 30, 1886, and Astor v. Arcade Ry. Co., N. Y. Daily Reg., Feb'y. 8, 1887.
John H. Y. Arnold,,
for the defendant, contended among other things that the injunction order restraining the defendant from doing any further work or causing, any further work to be done in, upon or about the said buildings and premises, prevented the defendant from doing any work towards finishing his buildings to his great damage, for it restrained him from completion of work which is not shown, or claimed to be a violation of the plans or specifications nor in any manner connected with, related to, 2or dependent-upon the existence or continuance of the alleged violations. The phraseology of this injunction order is copied from
p. 167
L. 1882 c. 410, § 506; but L. 1887, c. 566, § 31, amended this section, and the only injunction now authorized by law is to restrain the further progress of any violation mentioned, in the title. Proper force should be given to this amendment? its purpose evidently being to modify the harsh rule enacted by the earlier statute. The case of Fire Department of N. Y. v. Atlas Steamship Co., 106 N. Y. 566 , being brought before this amendment was enacted, does not control.
The case of the Eire Department of N. Y. v. Atlas Steamship Co. ( 106 N. Y. 566 ), is authority for the maintenance of this action. The phraseology of the injunction is copied from section 506 of the Consolidated Act (Laws of 1882). This section was amended in 1887 (§ 31, chap. 566, Laws 1887), by omitting the words “ or.of any work ‘ upon or about the building or premises upon which the said violation exists,” thus seemingly confining the injunction order to restrain the progress of any violation named in the title. This amendment became a law subsequent to the argument of the ease of Atlas Steamship Co. above referred to. Whatever effect this amendment may have in limiting the scope of an injunction in this-class of cases, I think in the present instance upon the facts, and upon the grounds that an adequate remedy exists to compel the removal of the oriels complained of at any time if decided to be obstructions on the street that the order should be confined to restraining the further progress of the work of completing the oriels, and not restrain the doing and completion of work which is not shown or claimed to be a violation of the plans and specifications, nor in any manner connected with, related to or dependent upon the existence or continuance of the alleged violations.
Ordered accordingly.
Cases cited
- Fire Department v. Atlas Steamship Co. 106 N. Y. 566 p. 166, p. 167