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REAL ESTATE
AND
NEW YORK, SEPTEMBER 2.3, 1916
THREE IMPORTANT DECISIONS WHICH AFFECT
THOSE INTERESTED IN BUILDING
By ALFRED LUDWIG, Superintendent of Buildings
'T~'HERE have recently been handed
â– *• down bv the courts several decisions
of vital importance to those interested
in building operations or havinp busi¬
ness with the Bureau of Buildings.
These decisions have materially changed
the construction that must hereafter be
placed upon certain sections of the
Building Code; they also materially
change the status of certain classes of
buildings that have heretofore been used
as places of public amusement or enter¬
tainment.
Possibly the decision which will more
immediately afifect the public in general
will be that of the Appellate Division
affecting the validity of permits. Under
tlie provisions of subdivision 4, of Sec¬
tion 4, of the Buildine Code, it has been
the practice of the Bureau of Buildings
for many years past to consider a permit
valid for one vear from the date of its
issue, regardless of the passage of any
new laws or ordinances that might in
anv way affect the character of the con¬
struction or conditions under which the
permit was approved. The Appellate
Division in the case of the Publicity
Leasing Company v. Ludwi? held as
follows:
"It is quite clear that the adoption of the
ordinance on May 29. 1914, rendered it un¬
lawful to erect thereafter tbe sign for
which the Superintendent of Buildings had
previously issued a permit, and it became
the duty ot the Superintendent to take
definite measures to prevent the construction
of the sign. Whether he formally revoked
his permit or not, is perliaps of little conse¬
quence, since the passage of the ordinance
had ipso facto invalidated it, for of course
no permit issued by any official could give
authoritv for the erection of a structure for¬
bidden by law. After the ordinance became
effective, it not onl" became unlawful to
erect a sign more than 7.5 feet high, or to
alter an existing sign so as to carry it to a
greater height, but any structure erected
in violation of the orilinance became an un¬
lawful structure, and no permit from the
Superintendent of Buildings whether issued
before or after May 20, 1914, could make it
lawful."
In view of this decision, the following
special order has been promulgated by
the Bureau of Buildiufs for the future
guidance of architects, Iniilders, plumbers
and others:
Soecial Order No. 11.
Validity of Permits.
"Any permit issued by tbe Bureau of
Buildings or for the appurtenances thereto,
will become null and void if any provisions
of said permit are inconsistent or contrary
to any of the provisions of any new law or
ordinances which may become effective be¬
fore actual work under the permit at the
building site commences."
The meaning of this order is that any
permit issued by the Bureau of Buildings
becomes invalid if any new law or ordi¬
nance,_ which may in any way afifect the
conditions or character of construction
becomes effective before actual physical
work at the building site begins.
Another most important and far
reaching decision in this instance affect¬
ing the use of buildings is that of Mr.
lustice .Shearn in the case of the City of
New York v. Lauchheimer. The decision
in full i.s as follows:
"Section 520 of the Building Code pro¬
hibits the use of anv building for public en¬
tertainments of any kind it not erected or
made to conform to the requirements ot the
Code, excepting only buildings 'in actual use
for theatrical or operatic purposes' at the
time of the passage of the ordinance. It Is
not claimed that this building was used for
either theatrical or operatic purposes when
the ordinance was adopted, but it appeared
that It was then and long theretofore had
been used for public entertainments.
ALFRED LUDWIG.
"Section 538 of the Building Code, en¬
titled 'Saving Clause,' reads: 'The pro¬
visions of the foregoing article shall not be
construed to mean or made to apply to any
theatre, opera house, or building intended to
be used for tbeatrical or operatic pur¬
poses, lawfully erected prior to June 3,
1904.' Defendants contend that, construing
the sections together, there should be read
into the saving clause the words 'or for pub¬
lic entertainment.' Then the exemption
from the requirements of the Building Code
would apply ' to any theatre, opera house or
building intended to be used for theatrical
or operatic purposes, or for public entertain¬
ments.' If that were done it would make It
lawful to take any building that was used
for any kind of public entertainment prior
to 1901 and use it for a theatre without
observing any fireproof or otfier safety re¬
quirements.
"Such an intention cannot be imputed to
the framers of the ordinance. It would af¬
ford an easy loophole for the multiplication
of non-fireproof theatres, entirely contrary
to the purpose of the statute. The words
sought to be reaa into the 'saving clause'
are also omitted from the exception to the
prohibition in Section 520. which is care¬
fully and with evident intention limited to
buildings 'in actual use for tbeatrical or
operatic purposes.'
"If it had been intended to except also build¬
ings used for public entertainments of any
kind that was the place for the additional
exception, and it would have been very sim¬
ple and easy to express.
"The reason for the exception was doubt¬
less the hardship involved in the expense of
making over a building used as a theatre
or opera house whereas there would be no
such hardsbip in making an ordinary ball¬
room or meeting-room conform to the re¬
quirements of the Building Code.
"The Court says that owing, however, to
the large number of buildings that may be
affected by this ruling, and to the delay that
must ensue in reviewing it because of the
summer recess, and to afford a reasonable
time to apply to the Board of Aldermen to
make the ordinance conform to the intention
claimed but not expressed, the Injunction,
so far as it applies to tbe use of the build¬
ing for dances, lodge and political meetings
and similar entertainments (but not includ¬
ing minstrel shows), will be suspended until
November 15, 1916."
This decision practically prohibits the
use of any premises for amusement pur¬
poses other than theatres or opera
houses erected and in use as such prior
to June 3, 1904, where accommodations
are provided for more than 300 persons,
unless the premises conforms to the pro¬
visions nf .'\rticle 25 of the Building
Code (theatres and other places of
amusement). As a result of this de¬
cision, the Bureau of Buildings of Man¬
hattan is disapproving all applications
for the use of existing buildings as places
of public amusement where accommoda¬
tions are provided for more than 300 per¬
sons, e.xcept theatres and opera houses
legally exempt, unless in conformity
with the theatre law. Unless the law is
changed before November IS, 1916,
scores of places now used as dance halls,
etc., will be forced to discontinue such
use until they have been made to con¬
form to the requirements of Section 25
of the Buildintr Code.
A third decision—that of Mr. Justice
Bijur—in the case of Altschul v. Lud¬
wig in tlie matter of the Dewey Theatre,
while directly affecting the powers of
the Board of Examiners will also apply
with equal force to the new Board of
.-Kppeals, which will succeed the Board
of Examiners on October 1, 1916.
The decision denies to this latter Board
the right to vary or modify the funda¬
mental law relating to buildings, as set
forth in the Building Code, excepting in
strict conformity with the provisions of
the Greater New York Charter. The
practice of the Board in the past has been
to approve appeals made to it which did
not appear to be detrimental to the public
interests, although not strictly in accord¬
ance with the Building Code. While
the decision is rendered m a special case,
its application must be considered as
general and placing a definite limitation
upon the powers of the Board of Ex¬
aminers and its successor, the new
Board of Appeals, until a higher court
has decided otherwise,
Mr. Justice Bijur's decision in full is
as follows:
"This action was begun August 5. 1915 by
the plaintift as a taxpayer to enjoin the first
named defendant as Siiiierintpnrlont nf HiiMd-
ings from approving plans filed April 1915
and issuing a permit for the alteration and
reconstruction of a building known as the
Dewey Theatre, in this city. The remaining
parties are. respectively, owner and tenant
of the building. A temporary injunction had
been granted, but was subsequently vacated.
The Appellate Division reversed the vaca¬
tion order and granted the motion to con¬
tinue the temporary injunction. On appeal
to the Court of Appeals, involving two certi¬
fied Questions, to which I shall refer later
on. the decision of the Appellate Division
was affirmed, with opinion reported In 216
N. Y., 4.59. The action for the Injunction
has now been tried before me on the merits.
"Before the action was begun the Superin¬
tendent of Buildings had disapproved the
plans, whereupon an appeal was taken under
Section 411 of the Greater New York Charter
to the Board of Examiners. This Board,
after a liearing, approved the plans upon
certain conditions and returned them to the
Superintendent for his approval. After the
temporary in'unction was di'^solved, the Sup¬
erintendent, believing himself bound by the
decision of the Roard. annroved tbe plans
and issued a permit, but the work after its
commencement was interrupted by the de¬
cision of the Appellate Court hereinabove
referred to.
"The testimony shows that this bnilding
was originally a church, known as Trinity
Chapel, constructed about 1876. In 1S96 it
was lawfullv converted into a hotel and
music hall, where refreshments and bever¬
ages were sold. In this form it varied from
its original condition so far as structural
changes were concerned only to the extent
that the front was rebuilt and ten rooms
there installed (in order to comply with the
law requiring th.nt amount of accommoda¬
tion in a hotel). The floor was leveled and
a gallery built on both sides. TTiere was no
stage, proscenium arch or curtain, but mere¬
ly a platform of the ordinary kind for musi¬
cians.
"In 1^98 a number of successive applica¬
tions for permission to alter tbe building
into a theatre were filed ; but so far as the
records of the Departnient show they were
all rejected by the Commissioner of Build¬
ings of this borough, who, with two other
Commissioners, cnnst'tntcd the Building De¬
partment under the Greater New York (bar¬
ter (Laws of 1897, chap. 378, sec. 644, et
seq,).