McIntosh v. Johnson

Relator is the lessee of a building in the borough of Manhattan, city of New York, which has been used by him and others as an automobile garage since 1903. Permits for its use were issued yearly until 1910, but since then no permit has been issued. The building is of brick, containing two stories and a basement, and has fireproof floors. The relator has applied for a permit which has been refused, and the purpose of this proceeding is to compel its issuance. In his application for a permit relator declared it to be his purpose to store and keep upon the premises 300 gallons of gasoline, 100 gallons of oil, and 20 gallons of kerosene. The defendants the Municipal Explosives Commission and the Fire Commissioner base their refusal to entertain relator’s application for a permit upon the fact that the building for which a license is required is next door and adjacent to a public school attended by some 1,700 pupils, of whom about 700 are under the age of ten years. On the other side of the building is a five-story non-fireproof tenement house. The defendants justify their refusal as follows:

Chapter 899, Laws of 1911, amended section 727 of the Greater New York Charter (chapter. 466, Laws 1901), by creating a Bureau of Fire Prevention, and added to the charter 11 new sections (section 774 et seq.), one of which (section 778c) authorized the Municipal Explosives Commission to issue certain regulations, which when approved by the Fire Commissioner should constitute a chapter of the Code of City Ordinances. Such regulations were accordingly issued and approved.

Among the restrictive provisions contained in another regulation or ordinance (370) is one which forbids the issuance of such a permit for any building, shed, or inclosure “which is situated within fifty feet of a building occupied as a school, theater or other place of public amusement or assembly.”

If this ordinance is valid, it affords complete justification for the refusal of the defendants to issue a permit. The relator’s contention is that the ordinance or regulation, in so far as it forbids the issue of a license to a garage within 50 feet of a school, is unreasonable and therefore void. We do not so consider it. The affidavits read in behalf of the defendants, which for the purpose of this motion must be accepted as true, show very clearly the constant danger that there is that a fire may break forth in a garage, and that, from the nature of the materials stored therein, the results of such a fire are likely to be very disastrous if a place of assemblage be near by where many persons are congregated, and especially if the place of assemblage be a school filled with young children. The danger perhaps will result rather from panic than from the fire itself, but in either case it is a danger to be guarded against. It appears that there have already been three fires in the very building for which a permit is now asked, but- fortunately they all occurred when the school was not in session. The regulation or ordinance is well within the power given by the Legislature and is well adapted to carry into effect the purpose of the legislation. We do not think, and therefore cannot say, that it is oppressive or unreasonable.

The order must therefore be affirmed, with $10 costs and disbursements. All concur.