October 14," 1965





nECORT)  AXD   OFTDK





571





it non-inflammable for a comparatively short time. When wcoi
treated by this process has been exposed to water it immediate¬
ly loses its fireproof ciuallly. Floors have to be scrubbed to keep
them clean and two or three applications of water not only de¬
stroy the chemicals but ruin the appearance of all treated wood'
by turning it black.

"But the worst effect of the process, in our opinion, and one
which would indicate the great injury done to property interests
of the owners of buildings in which the flreproofed wood is uised,
is the fact that it apparently tak«s the life out of the wood, ren¬
dering it punky and subject to decay. It is our belief that in
the buildings which we have finished with flreproofed wood it
will be necessary before many years to replace all tlie trim and
doors.

"If wood is used sparingly in fireproof buildings, as proper
melhods of construct on now dictate, there is absolutely no use-
ot attempting to render it flreproof. It is a well-known fact
that the furniture and draper,es in the modern hotel, office
building or other structure are inflnitely more dangerous as a
food for flames than would be the trim and flooring even in old-
faihioned flreproof structures where the use of double floors and
heavy panelled wainscoting was customary."
BUILD   OF   NON-COMBUSTIELE   MATERIALS,    SATS    MR.

COWEN.
" Cha.rles A, Cowen, Second Vive-President of the Build'ng
Trades Employers' Association, is another builder who no longer
has faith in "fireproof" wood, Mr, Cowen advocates using in-
combust ble materials in construction work as far as possible
ae a general proposition, but making compromises when neces¬
sary. He is not opposed, for example, to melal covered doors
and frames, or to wood under-fiooring and for bucks for the
doors which do not come in contact with the atmosphere.

"I do not know," he said, "of any system of fireproofing by
which wood may be treated and not after the expiration of.a.
certain period of time lose its fireproof quality. Our greatest
fire hazard is from the furniture of a rcom or bu'lding.: .aud .EiDt
from  the composite parts of a building.                                 .     ■ : -

, "Furthermore, it is impossible to get 'fireproof wood promptly,
Tbe manufacturers haven't good facilities for turning it out
in suflicient quantities to meet the large requirement. Tbis and
the enormous cost makes it burdensome on builders and
owners."





Ornamental Projections.

/PRIVATE ENCROACHMENT UPON PUBLIC PROPERTY
JUDICIALLY   CONDEMNED,

,- A judicial decision rendered by the Appellate Division in ,a suit
of Samuel McMillan against the Klaw & Erlanger Construction
Co., owners of the New Amsterdam Theatre on the south side of
42d st, has important results for the real estate and buildini;
trades. The action was brought by an owner of property situate
on J2d st, in the city of New York, to restrain the defendant aa
owner of the adjacent lot from orecting as a part of its building
lliereoii a structure about 4i5 ft in height, and extending into tbe
street 4  ft beyond tbe building line.

The defendant interposed a supplemental answer by which
it set up as a defense fn ordinance passed by the Board of
Aldermen of tbe city of New York subsequent to the commence-
m.ent of the action, wbich ordinance it is claimed sanctioned and
legalized the structure complained of.

The pl.aintiff demurred to the supplemental answer upon the
giGund that it waa insufficient in law; the demurrer was over¬
ruled, with leave to the plaintiff to withdraw the same, wliich it
did not do, and final judgment was thereupon entered dismissing
the complaint. From this judgment the plaintiff appeals and
also brings up for review the interlocutory judgment overruling
the demurrer.

"We are of the-opinion," says Justice O'Brien, "that the de-
muri'er was improperly overruled, for tbe reason that the or--
dinance by which the defendant seeks, to justif.y the structure
complained of is unconstitutional, in that it deprives the plain¬
tiff of his property without due process of law.    ,    .    .

"The question presented is whether such a .municipal enact¬
ment is consLltutional, the effect of which would permit one
property owner, for his own benefit, to erect a at:ructure in the
public street which would seriously impair the easements of hi^
neighbor without compensating him therefor.

"In approaching the consideration of this question, it must be
borne In mind that three parties have separate and distinct in¬
terests and rights in the street upon which the plaintiff's prop¬
erty is situated, to wit, the public at large, the city of New
York and owners of property abutting thereon, wiih respect to
tbe easements therein those enjoyed by the public and those
owned by individual property owners are separate and distinct.
The former are public and the latter are private easements.
Even though the public easements be destroyed, as in the in¬
stance of the closing of a street, private-easements are not neces¬
sarily destroyed by such closing.           -,■■■■-.

"The legislature of the State, acting a's the representative of
the public at large, has, within constitutional limitations, auth--
orlty to control the use of the street. It may widen the stree:
ornarrow it; may "change its-course or even- close-it; and belng-
.tHa F«presentatlve of the pnfiJic,it..may.,limit_'tt)-.a c.e-rl.9.lFi.6xte.nt-





the use thereof by the public, providing that it does not invade
the property_j-igliIs of the. individual or destroy his property
right.s without con-pcnsation. The municipality has au interest
in Lhe street by reas.iu of its being vested with the fee [hereof.
But (his fee is a qualified one, being held by it in trust Eor the
pubiie use and benefit:, and "thai use cannot be departed from
witlinut violating an essentia! condition of the conli-acE between'
it and the abutting property owners, as expressed by the ad-
jt'.dication 'in the st^.-set opening proceedings under which tl.o
land was obtained. So long as the municipality does not violate
the contract it may withdraw from the use of the general publls
portif^n of tbe street, pruviding that it always acts within tha
constitutional limits, and either under express legislative auth¬
ority or in" the exer-ise of the inherent" right residing in it fjr
controlling the use of its streets for the purpose for which thdy
were dedicated. '                          .....

"The structure which the defendant in this case is erectini,"
cannot in any event te regarded as a use of the street whicn
benefits at ah" the public at large. On the contrary, it en¬
hances the v;xluo of the defendanii's property alone, and witn-
draws fiom tbe public a portion of the street itself. ■ If tfto
legality of the ordinance be sustained it would permit individuala
to appropriate from two-to flve feet of "public property all along
t!io streets of the city, and under the guise of ornamental pro¬
jections to devote the land to whatever uses their private in¬
terests might require. The ordinance attempts to sanction pri¬
vate enci-oachn-ents upon public property which by the greatest
stretch of the" imagination cannot be considered as beneficial to
tbe general public, or as contributing to the business or com-
inefcial welfare of the community at large, QraiiK.inces which
llius devote public property to private uses are not looked upon"
with favor, and the cOurls %vin scan them closely with a desir-;
fo jealously" guard tiie rights of the public from iUesal invasion'
under' the guise of municipal authority. An attempt by tho
munieipalily fo authorize "a wilful encro?.chment or consiraclion
of this character will' alivays be condemned unless the power lo
sanction it is"clea"rly shown.   "

"One of the latest judicial utterances upon this subject is found
In the opinion of the'Court of Appeals In the case of Ackerman
V. True ([") N, T:, .3?3,"p, 3[^^). where It is said: 'Although it Is-
trtie that the tille of the street in the City of New York is iu the
municipality, thai title is held by it in trust for public use, and'
not even the municipal assembly has authority to permit per¬
manent encroachments thereon.' While thai body may, by or¬
dinance, regulate the use of streets, highways, roads, publi.;
ph-ices and sidewalks, and prevent encroachments on and ob-
slructions lo. t.he same, the cha'racter expressly provides that they
shall have no power to authorize the placing or continuing of any
encroachment up.jn any street or sidewalk, except the temporary
dccupation thereof, during the erection or repairing of a build¬
ing on a lot optiosite  Ihe same.

"Referring again to the particular encroachment here involved,
we repeat that it impedes a new, unusual and additional h'jrdeu
upon the street, and diminishes the plaintiffs easements wich-
oul compensation. No municipal or legislative enaclmenl can
justify or sanction such an invasion of the rights of private
pr.jperty- guaranteed to the citizen by, both state and federal
eo]is:itutious, and therefore the ordinance set up in the answer
is no defense- to the plaintiff's cause of action. For these reason's
the demurrer tlierelo should have been sustained as it was in¬
sufficient in law.

"It follows that the judgment appealed from must be reversed
with costs to the arpei'ant, and. that the plaintiff should have
judgment for relief prayed for in the complaint, with costs at
the action."





■*■+*****+*■*-*■■*■■*-*-*■*■*■***■*■**■** *-*-*-*■ 1lc*1!r-**■A"Jlr***-A■*■^■■-

y^.          The Index to Volume LSXV. of the Record and Guide,

J covering th-j period between January 1 and June 30, llJUo,
il is ready for delivery. Price, $1, This Index in its enlarged
form is now recognized as indispensable to every one en¬
gaged or inttrestcd in real estate and building operations. ^
■It covers all transactions—deeds, mortgages, leases, aue- ^
tion sales, biiilding.plans filed, etc. Orders for the Index -k
should be sent at once to the office of publication, 14 and i*
IC Vesey St.                                                                                     I

•■A-**-*-*******"***-*-* ■*■.■*■**■**■***■**-*"*■■***■***-**• *-**3r





—On Monday evening, Oct. !>th, the first regular meeting of
the season of the Acnjy Realty Club of the West Sidy T. M. 0. A.
v/as held in one of the dining r-ioms at Reisenweher's, S.Sth st
and Sth aw "After dinner addresses were m?de by Mr, Robert
E. Pimon, of L. J. Phillips Se Company; Mr, Louis Rodney Berg,
.T, Clarence Davies and E. A. Tredwell. The .-icmy ReaUy Club
is composed of tha members of last year's real estate class of th-i
West Side Y. M, C, A„ 318 W'est 57th st. This club was formed
in .January, its-object being to keep together the :i3o men who
were members of- the class, for the mutual benefit of all the
members. 150 of th-.;m became members of the club. Meetings
were .held throughout the year, and during the summer many
field excursions -were taken. The club will m.eet on the second
Monday- of every month,, at which a dinner will be given, and
many prominent men have been asked to address these meetings.
The -n-iombers of this year's real estate class are also eligible to
membership in this club. ,-    .....