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Real estate record and builders' guide: [v. 98, no. 2545: Articles]: December 23, 1916

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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 ■ 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."