In re Baerenklau — 244 A.D. 816

Majority

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In the Matter of the Application of Albert G. Baerenklau and Another, Doing Business as Baerenklau & Company, Respondents, for an Order of Peremptory Mandamus Directed to Edwin H. Thatcher, Commissioner of Buildings of the Borough of Brooklyn, City of New York, Appellant.

The commissioner of buildings of the borough of Brooklyn, the appellant herein, appeals from an order entered in Kings county on November 19, 1934, granting the petitioners’ motion for a peremptory order of mandamus and commanding the appellant to cancel a violation filed against the premises No. 1258 East Twenty-third street, borough of Brooklyn, in relation to the installation of an oil burner and the storage of oil in a 275-gallon tank. Peremptory mandamus order affirmed, with costs. Any doubt in respect to the matter can be readily remedied by a clarifying statute. Young, Carswell and Scudder, JJ., concur; Lazansky, P. J., concurs in the result, with the following memorandum: The so-called McCall Act (Laws of 1933, chap. 764)^[1] did not completely deprive the fire commissioner of jurisdiction over combustibles. That act and the fire prevention sections of the Greater

* Adding title 2 (§§ 405-416-a) to chapter 9 of the Greater New York Charter. — [Rep.

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New York Charter may be reconciled. Where fuel oil tanks installed in buildings involve structural considerations, both fire and building commissioners have jurisdiction, and the permit of each must be procured. Where no structural considerations are involved, the permit of the fire commissioner alone must be obtained. In the notice of violation filed by the building commissioner, structural considerations were not involved and, therefore, it was not necessary to have a permit issued by him. Johnston, J., dissents and votes for reversal.