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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(not repealed by the Tenieiuent House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^â– 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
â– 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