Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 89, no. 2293]: February 24, 1912

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COURT OF APPEALS DECISION CAUSES A STIR It Removes Apartment Houses from the Juris(iiction of the Tenement Department and Causes an Emergency Bil! to be Introduced at Albany. T HE decision handed down by the ^ Court of Appeals on Tuesday of last week in the case of Otto Grimmer vs. the Tenement House Department of the City of New Tork has created a lively stir. It upsets the definition of a tenement house which has prevailed heretofore and apparently removes apartment houses from the jurisdiction of the Tene¬ ment House Department. The decision is to the effect that section 9 of the Building Code of IStlO, which recognizes apartment houses as a class of build¬ ings distinct from tenement houses, was (not repealed by the Tenieiuent House Act of 1901. The Act of 1001 was of course intend¬ ed by its framers to embrace sucli houses as the Building Code termed apartment houses. Hence, the sui>port- ers of the Act have this week procured the introduction of an ordinance in the Board of Aldermen and of a bill in the Legislature to repeal Section 9 of the Building Code. The purpose of the or¬ dinance and of the bill is to restore the interpretation of a tenement house un¬ der which the Tenement House Depart¬ ment has acted since its organization. Uiider an emergenc.v message frora the Governor, the bill passed both houses of the legislature yesterday, 'Meanwliile a number of prominent real estate men who claim that this interpretation has prevented certain de¬ sirable forms of apartment hoiise con¬ struction, have united in opposition to the repeal of Section 9 of the Buiiding Code, at least until the Tenement House Act is modified in so far as it relates to apartment houses. Last week's decision, they say, offers an opportunity which should not be neglected of framing an equitable distinction between tenement houses and apartment houses, without removing the latter from the jurisdic¬ tion of the Tenement House Department. This opinion found expression yesterday at a meeting of the Allied Real Estate Interests. It will no doubt be acted upon despite the fact that the bill has been passed. A Tenenient Defined. The Tenement House Act of 1001 de¬ fines as a tenement house "any house or building or part thereof which'is rent¬ ed, leased, let or hired out to be occu¬ pied or is occupied as the home or resi¬ dence of three families or more, living independent of each other and doing their cooking upon the premises, or by more than two families upon a fioor so living and cooking. )nit having a common right in the halls, stairways, yards, water- closets or privies or some of them," This definition had been in form since ISGi. except that prior to the tenement law of 1SS7 it had read "more than three fami¬ lies" instead of "three families or more." The Building Code of 1899 introduced an innovation by undertaking to define an apartment house, which had there- tofoi-e had no legal recognition. Section 9 of the code reads; "An apartment house shall be taken lo mean and in¬ clude every building which shall be in¬ tended or designated for, or used as. the home of three or more families or house¬ holds, living independently of each other, and in which every such family or house¬ hold shall have provided for it a kitchen, set bath tub and water closet, separate and apart from any other. Any such ouikling hereafter erected shall not cov¬ er any greater percentage of a lot than is lawful to be covered by a tenement ihouse. and the requirements for light v'lnd ventilation for a tenement house shall also apply to an apartment house," The framers of the Tenement Housl^ Act of 1901 unquestionably meant that there should be no distinction between tenements and apartments unde,r the act. This inference is plain from the follow¬ ing passage in the report of the commis¬ sion which drew up the act: "It has been suggested to the commission that they should distinguish between tenement and :ipartment houses. All who have made Ihis suggestion have been asked what regulations for lighting, ventilation, fire protection and sanitation should tie re¬ quired hy law for the protection of the dweller in an East Side tenement whicii should not equally be required for those who live in West Side apartments or. even If not required, would not be com¬ plied with from motives of enlightened self-interest by every intelligent owner of a first class apartment house? No such regulation has been pointed out, nor has any member of the commission been able to suggest any. On the other hand, more than tweitty oflicials of the Board of Health strongly recommended that no change in the law be made, for the reason that there could be no dis¬ tinction which would nut result in eva¬ sion of law and that the only effect of such distinction would be to give conces- isions to the larger apartment h-ouses, which would be objectionable from sani¬ tary reasons." The foregoing paragraphs will help to explain the importance of last week's decision, which reads in part: "This is an appeal from an order and judgment of the First Appellate Divi¬ sion, reversing on questions of law only a judgment of the Supreme Court there¬ tofore entered upon the report of former Supreme Court Justice Edward W. Hatch, as referee, in favor of plaintiff, and granting a new trial. "The action was brought by plaintiff to restrain the defendants from seeking to enforce the provisions of the Tene¬ ment House Act (Laws of 1901. chap. 334) against plaintiffs building, planned and erected in 1991, This building was .located on East 31st street, between Lex¬ ington and Fourth avenues, in the citv of New York, and is claimed by plaintiff to be an apartment house.with certain hotel features and not to be a tenement house within and subject to the provi¬ sions of said Tenement House Act which (defendants threaten to enforce. It is conceded that if the building is a tene¬ ment house it offends against the provi- sionis of said act, and that this action should not be maintained. = a * "The plaintiff is seeking to prevent the defendants from enforcing the provisions of the Tenement House Act applicable to the city of New Y'ork against his building. He urges that the latter Is an apartment house or apartment hotel suljject to the provisions of the Building Code and not a tenement house subject to the provisions of said first mentioned act. If his conten¬ tion in this respect is wrong then con¬ cededly his building violates the law and this action cannot be maintained. Is n Distinction Xecessary f "Thus we have presented the important and difficult question whether for pur¬ poses of supervision and regulation in the city of Xew Tork a class of modern resi¬ dential buildings popularly and somewhat indefinitely known as 'apartment houses,' and iierhaps fairly typified by plaintiff's liuilding. ma^■ be and have been distin¬ guished from the buildings covered by the much older term and designation of tene¬ ment houses. The importance of the ques¬ tion is found, if nowhere else, in the more detailed, rigorous and primitive nature of the provisions which liy the Tenement House Act are made applicable to what¬ ever buildings are to be classified as tene¬ ment houses. Its perplexity is evidenced somewhat at least by the circumstance that in this case in elaborate and most carefully considered opinions the learned referee and Appellate Division have reached diametrically opposing conclu¬ sions. "The disposition of the question whether plaintiff's Iniilding is a tenement house in¬ volves an examination of legislation and legislative definitions, » « * "Considering simply the indispensable reciuisites in the definitions we perceive that an apartment house differs from a tenement house in three important partic¬ ulars. It must have a separate water closet and bath tub, the latter not being at all reciuired in the tenement house and the former only in certain cases. It also must have a separate room or "kitchen," presumably for preparing and cooking food, whereas in the case of the tenement house these operations may be conducted in a room also used for sie&ping, living or any other purpose, "These seem to be distinguishing fea¬ tures of substances. The desci-iption of plaintiff's buiiding shows how far the apartment house is liable to be developed beyond the essential Tequirements speci¬ fied in this definition. "Chapter 4G6 of the Laws of 1901 (Sec¬ tion 407) provided : 'The building code which shall be in force in the city of New York on the first day of January, 190:i, and all then existing provisions of law fix¬ ing the penalties for violation o'f said Code, and all then existing laws affecting or relating to the construction * « * of buildings * « * within the city of New York are hereby declared to be binding and in force * * * except.' etc. Therefore, if the provision of the Building Code al¬ ready quoted defining an apartment house was 'in force in the City of New Tork on the flrst day of January. 1902.' then the statute in question had the effect of expressly ratifying and adopting and con¬ tinuing a definition of an apartment house which differentiated it from a tenement house as the latter was defined and regu¬ lated by the Tenement House Act. and placed it outside the operation of said act, "It is urged, however, that the definition of an apartment house in t'ne Building Code was not thus continued by this act for the reason that it was not "in force" when said act was passed, but had been repealed by the Tenement House Act of 1901, which took effect a few days before the statute last quoted froin and which provided, 'All statutes of the state and ordinances of the city so far as inconsist¬ ent with the provisions of this act are hereby repealed,' etc. "I think that tliis contention is not well founded. In the first place, I doubt that we could say that the differences between the tenement house as defined by the Tenement House Act and the apartment house as defined by the Buiiding Code, and ■which have been pointed out are so un¬ substantial and shadowy that the former act should be regarded as repealing by implication for inconsistency the provi¬ sions of the code on the theory that the latter attempted to define as an apart¬ ment house what was defined in the statute as a tenement house. There is no express repeal and it is familiar law that even under ordinary circumstances re¬ peals by implication are not favored and will not be declared on tlie ground of in¬ consistency or repugnancy unless the same is plain and unavoidable. (People ex rel. Woods v. Crissey, 91 N. T. 616; Mark v. State of New Y'ork. 97 id, 572.) "But in this case the ruie against repeal by implication is even stronger than the ordinary one, since the Tenement I-Iouse Act was a general one, whereas the Build¬ ing Code was in effect a special act ap¬ plicable only to New York City, The rule in such case is that a special statute pro¬ viding for a particular class of cases is not repealed by a subsequent statute gen¬ eral in its terms, provisions and appli¬ cation unless the intent to repeal it is manifest, although the terms of the gen¬ eral act are broad enough to include the cases embraced in the special law, (City of New York v. Trustees Sailors' Snug Harbor, 8.J App, Div. 355; affirmed on opinion below, ISO N. T. 527.) RcnlliruiHtiou Intended. "But even if this view is incorrect. I further believe that when the act of 1910. pi-ovided that the Building Code, w-hich should 'be in force - * " on the 1st day of Januarv, 1002," should 'continue to be so binding and in force' that it was intended to include and reaffirm the Code as it had been written, adopted and continued in foi'ce bv the municipal assembly which had been especially intrusted with the duty of framing it; that while it may be