Fire Department v. Braender — 3 N.Y. St. Rep. 580

Majority

p. 580

Fire Department of the City of New York, Resp’ts, v. Philip Braender, App’lt.

(New York Common Pleas, General Term,

Filed December 6, 1886.)

Headnote

Penalty—Building laws—Laws 1885, chap. 456, §§ 30, 505.

The defendant, pursuant to Laws 1885, chap. 456, § 30, submitted to the superintendent of buildings specifications and plans for buildings which he proposed to erect; these were approved and the buildings complied with the plans in every respect, except as to the thickness of the chimney breasts. Laws 1885, chap. 456, 6 505, provides a penalty for erecting buildings in violation of the methods of construction required by said act, and also a penalty for any violation of the provisions of the title. Held, that there was no penalty created and imposed for non-conformity to the jilans and specifications filed and approved in the matter of chimney breasts. That a penalty must be expressly created and imposed by statute, and cannot be raised by implication.

p. 581

William L. Findley, for resp’t; Bartlett, Wilson & Hayden, for app’lt.

The defendant submitted to the superintendent of buildings, pursuant to section 30, chapter 456 of the Laws of 1885, specifications and plans for five new buildings which he proposed to build on East Seventy-sec- and street. These specifications and plans were approved by the superintendent of buildings, and required that the chimney breasts in the party walls of the buildings should be twenty-eight inches in thickness. The defendant then erected his buildings in compliance with these plans and specifications in every particular, except that he built the chimney breasts twenty inches, instead of twenty-eight inches in thickness.

The following question is presented for decision:

Is the defendant liable to a penalty for constructing the chimney breasts twenty inches in thickness when his plans and specifications showed chimney breasts twenty-eight inches in thickness.

Chapter 456 of the Laws of 1885, under which a penalty is claimed, contains no provisions which fixes the thickness of chimney breasts in buildings. Section 505 of that chapter provides a penalty for erecting buildings in violation of the methods of construction required by the said act; and also a penalty for any violation of the provisions of the

It is therefore plain that no penalty is created and imposed for non-conformity to the plans and specifications filed and approved in the matter of the thickness of chimney breasts.

The argument that the provision of the building law, requiring the filing and approval of plans before building, necessarily involves a requirement that the building shall be erected in accordance with the approved plans and specifications, and a variance therefrom is a violation of the act, and the plaintiff’s proposition that because a building does not conform in some particular with the plans and specifications filed and approved, therefore the building has been erected without filing the plans and specifications, and procuring their approval, are in conflict with the law as laid down in Health Department v. Knoll, 70 N. Y., 536 . In that case it is held that a penalty must be expressly created and imposed by statute, and cannot be raised by implication.

There is no penalty given by the statute for the act complained of, ana therefore the judgment must be reversed.