REAL ESTATE
AND
NEW YORK, DECEMBER 23, 1916
IMPORTANT DECISION FOR PROPERTY OWNERS
Fire Commissioner Directed to Rescind and Cancel Order
Requiring Fireproofing of Shaft—May Affect Other Orders
"T"" HE .appellate Division of the Su-
•^ prenie Court. First Department, has
rendered a decision of the utmost im¬
portance to property owners and lessees
in the matter of the appeal from an or¬
der of Mr. Justice Giegerich, granting a
writ of mandamus directing the Fire
Commissioner to rescind and cancel his
order requiring William H. Browning,
of Browning, King & Co., to fireproof a
light shaft in one of his buildings. The
appeal was argued on December 1, by E.
Crosby Kindleberger, Assistant Corpor¬
ation Counsel, in behalf of tlie appellant,
the Fire Commissioner, and by Ale.xan-
der C. MacNulty for the relator, Mr.
Browning. The decision on the appeal
was against the Fire Commissioner and
is explained in an instructive opinion
by Mr. Justice Dowling, concurred in
by Presiding Justice Clarke and Justices
Laughlin, Page and Davis, as follows:
"The relator is one of the owners of
the premises known as No. 16 West 57th
street, in the Borough of Manhattan,
City of New York, occupied as a factory.
On February 16, 1916, the Deputy Fire
Commissioner of tlie City of New York
(duly authorized to make such orders
by the Fire Commissioner) issued an or¬
der requiring the owners of said prein-
ises, within thirty days, among other
things, to 'provide an enclosure of ap¬
proved fire retarding material around
the light shaft at west side of building
leading from second story to roof. Plans
and specifications in duplicate showing
all proposed alterations must be filed
with and approved by this Department
â– before the above work may be com¬
menced. All structural changes must
be approved by the Board of Building.'
The relator refused to comply with this
order, denying the right or power of the
Commissioner to make the same, and
applied for a writ of mandamus to re¬
quire the commissioner to rescind and
cancel the order, which writ has been
directed to issue accordingh'.
"The Commissioner claimed the power
to make the order in question under the
provisions of the Ordinances of the City
of New York, Chapter 12, .Article 2, Sec¬
tion 20, reading as follows:
"Sec. 20. Fire alarm and flre extinguishing
appliances :
"The owners and proprietors of all manu¬
factories, hotels, tenement houses, apartment
houses, oflice buildings, boarding and lodging
houso."^, warehouses, stores and offlces, theatres
and musie halls, and the authorities or persons
having charge of all hospitals and asylums, and
of the public schools and other public buildings,
churches and other places where large numbers
of persons are congregated for purposes of wor¬
ship, instruction or amusement, shall provide
such means of communicating alarms of fire, ac¬
cident or danger to the police and fire depart¬
ments, respectively, as the Fire Commissioner or
the Police Commissioner may prescribe, and shall
.tIso iirovide such fire hose, fire extinguishers,
buckets, axes, fire hooks, fire doors and other
means of preven.ting and extinguishing fires as
the Fire Commissioner may direct."
"It is not necessary to review the his¬
tory of Sections 774 and 775 of the
Greater New York Charter, for in our
opinion the Fire Coinmissioner's powers
thereunder originally were limited to the
enforcement of the laws and tlie city or¬
dinances, and the provision quoted is
the only one relevant to the question at
issue. When by further amendment he
was given the power to enforce the regu¬
lations 'of the industrial board of the
Department of Labor in respect to fires
or the prevention of fires' ("Chapter 459
Laws 1914. amending Section 775 of the
Charter), he did not receive the power to
ALEXA.\DER C. MAC NULTY.
make the order in question, for Section
79a of the Labor Law as then e.xistent
provided for the enclosure' in fireproof
material of light and other shafts in fac¬
tory buildings thereafter erected, and
the building in question is not in the
category.
"Therefore, if the Commissioner prop¬
erly made the order now under consider¬
ation, it must be because of the power
given him by the ordinance above set
forth. Realizing the importance of up¬
holding the jurisdiction of the Fire Com¬
missioner whenever possible, and the
propriety of respecting his discretion
when exercised in a matter so vitally af¬
fecting life and property as fire preven¬
tion, I am unable to find in the ordi¬
nance any power conferred upon him to
order any structural changes in a factory
building.
"It will be noted that the Fire Com¬
missioner is given power to direct the
installation of specific articles enumer¬
ated in the section which are in the
nature of implements or physical aids
to the extinguishment of fire, or the pre¬
vention of its spread, viz., 'fire hose, fire
extinguishers, buckets, axes, fire hooks';
the only other articles mentioned are
'fire doors,' which can be easily hung on
existing walls or surfaces, adjusted to
present conditions, and involve no struc¬
tural changes in the building. Then fol¬
low the general words, 'and other means
of preventing and extinguishing fires.'
.'Kpplying the rule of ejusdem generis,
this provision did not extend the power
of the Commissioner beyond directing
the furnishing of implements and ar¬
ticles analogous to those enumerated.
The general language used did not ex¬
tend the class or nature of the articles
enumerated by the special language
(,\vlsworth v. Phoenix Cheese Co.. 170
App. Div. 34; Daly v. Haight. Id., 469).
"In People v. Kaye, 212 N. Y. 407, the
Court of Appeals, by a vote of four to
three, upheld an order of the Fire Com¬
missioner for the installation of a system
of automatic sprinklers in defendant's
building. In construing Section 762 of
the Greater New York Charter, the
Court said that 'autoinatic sprinklers.
though they may cost a little more than
the articles specifically mentioned in the
section, are of the same general char¬
acter and are intended for the same pur¬
pose as those articles.' This reasoning
does not apply to the present case, for
the fireproofing of the light shaft is not
of tlic same general character as the fur¬
nishing of the improvements enumerated
in the section.
"The order appealed from is therefore
affirmed with $10 cost and disbursements
upon the ground that the Fire Cominis-
sioner had no power, under the law, to
make the order in question."
Interrogated as to the practical effect
of the decision, Mr. MacNulty said:
"During the last three years the Fire
Department has issued thousands of or¬
ders requiring fireproofing and other
structural changes in all classes of build¬
ings, other than tenement houses. The
majority of these orders have affected
factory and other business buildings, and
nearly all of them have been based upon
the authority which the Fire Commis¬
sioner claimed to have under Section 20
of Chapter 12 of the Code of Ordinances.
"Property owners and their lessees,
under threats of criminal prosecutions
or actions for penalties, have been co¬
erced into the expenditure of millions of
dollars in complying with such orders,
while in hundreds of cases responsible
citizens have been haled to court and
fined for failing promptly to comply
with the requirements of the Fire De¬
partment respecting their properties, and
others have had their buildings vacated,
their tenants evicted, for the same rea¬
son.
"The decision of the Appellate Divi¬
sion in his case establishes that all au¬
thority e.xercised by the Fire Commis¬
sioner, under Section 20 of Chapter 12
of the Ordinances, to require fireproofing
and other structural changes in factory
buildings has been usurped and that all
such orders are unlawful. To my mind,
the legal effect of the unanimous deci¬
sion of the Court, as expressed in the
opinion of Mr. Justice Dowling, is far-
reaching. While it relates specifically
to factory buildings only, it necessarily
follows that if the provisions of the
ordinance are insufiicient to justify the
Fire Commissioner in requiring a struc¬
tural change in a factory building, they
are inadequate to warrant his requiring
such a change in any building. For this
reason, I believe that every order that
the Fire Commissioner has made requir¬
ing structural changes in oflice buildings,
mercantile establishments, lodging
houses, etc.. under Section 20 of Chapter
12 of the ordinances, is invalid and can¬
not be enforced in the Courts."
Asked as to what redress is available
to those who have expended their funds
in making structural changes required
by unlawful fire-orders, or in paying
fines or penalties for non-compliance
therewith, Mr. MacNulty said: "Theor¬
etically, an administrative officer is per¬
sonally responsible in dam.ages for the
injurious consequences of an unlawful
official act coininitted by him or by his
direction; but, practically, a property
owner would stand a poor chance of re¬
imbursement for his expenditure in com¬
plying with an invalid fire-order in an
action against the Fire Commissioner.
The Coinmissioner would prove that he
had proceeded under the advice of his
statutory legal adviser, without malice;
with the result that any damages award¬
ed against him would be nominal."