Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 98, no. 2532: Articles]: September 23, 1916

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REAL ESTATE AND NEW YORK, SEPTEMBER 2.3, 1916 THREE IMPORTANT DECISIONS WHICH AFFECT THOSE INTERESTED IN BUILDING By ALFRED LUDWIG, Superintendent of Buildings 'T~'HERE have recently been handed ■*• down bv the courts several decisions of vital importance to those interested in building operations or havinp busi¬ ness with the Bureau of Buildings. These decisions have materially changed the construction that must hereafter be placed upon certain sections of the Building Code; they also materially change the status of certain classes of buildings that have heretofore been used as places of public amusement or enter¬ tainment. Possibly the decision which will more immediately afifect the public in general will be that of the Appellate Division affecting the validity of permits. Under tlie provisions of subdivision 4, of Sec¬ tion 4, of the Buildine Code, it has been the practice of the Bureau of Buildings for many years past to consider a permit valid for one vear from the date of its issue, regardless of the passage of any new laws or ordinances that might in anv way affect the character of the con¬ struction or conditions under which the permit was approved. The Appellate Division in the case of the Publicity Leasing Company v. Ludwi? held as follows: "It is quite clear that the adoption of the ordinance on May 29. 1914, rendered it un¬ lawful to erect thereafter tbe sign for which the Superintendent of Buildings had previously issued a permit, and it became the duty ot the Superintendent to take definite measures to prevent the construction of the sign. Whether he formally revoked his permit or not, is perliaps of little conse¬ quence, since the passage of the ordinance had ipso facto invalidated it, for of course no permit issued by any official could give authoritv for the erection of a structure for¬ bidden by law. After the ordinance became effective, it not onl" became unlawful to erect a sign more than 7.5 feet high, or to alter an existing sign so as to carry it to a greater height, but any structure erected in violation of the orilinance became an un¬ lawful structure, and no permit from the Superintendent of Buildings whether issued before or after May 20, 1914, could make it lawful." In view of this decision, the following special order has been promulgated by the Bureau of Buildiufs for the future guidance of architects, Iniilders, plumbers and others: Soecial Order No. 11. Validity of Permits. "Any permit issued by tbe Bureau of Buildings or for the appurtenances thereto, will become null and void if any provisions of said permit are inconsistent or contrary to any of the provisions of any new law or ordinances which may become effective be¬ fore actual work under the permit at the building site commences." The meaning of this order is that any permit issued by the Bureau of Buildings becomes invalid if any new law or ordi¬ nance,_ which may in any way afifect the conditions or character of construction becomes effective before actual physical work at the building site begins. Another most important and far reaching decision in this instance affect¬ ing the use of buildings is that of Mr. lustice .Shearn in the case of the City of New York v. Lauchheimer. The decision in full i.s as follows: "Section 520 of the Building Code pro¬ hibits the use of anv building for public en¬ tertainments of any kind it not erected or made to conform to the requirements ot the Code, excepting only buildings 'in actual use for theatrical or operatic purposes' at the time of the passage of the ordinance. It Is not claimed that this building was used for either theatrical or operatic purposes when the ordinance was adopted, but it appeared that It was then and long theretofore had been used for public entertainments. ALFRED LUDWIG. "Section 538 of the Building Code, en¬ titled 'Saving Clause,' reads: 'The pro¬ visions of the foregoing article shall not be construed to mean or made to apply to any theatre, opera house, or building intended to be used for tbeatrical or operatic pur¬ poses, lawfully erected prior to June 3, 1904.' Defendants contend that, construing the sections together, there should be read into the saving clause the words 'or for pub¬ lic entertainment.' Then the exemption from the requirements of the Building Code would apply ' to any theatre, opera house or building intended to be used for theatrical or operatic purposes, or for public entertain¬ ments.' If that were done it would make It lawful to take any building that was used for any kind of public entertainment prior to 1901 and use it for a theatre without observing any fireproof or otfier safety re¬ quirements. "Such an intention cannot be imputed to the framers of the ordinance. It would af¬ ford an easy loophole for the multiplication of non-fireproof theatres, entirely contrary to the purpose of the statute. The words sought to be reaa into the 'saving clause' are also omitted from the exception to the prohibition in Section 520. which is care¬ fully and with evident intention limited to buildings 'in actual use for tbeatrical or operatic purposes.' "If it had been intended to except also build¬ ings used for public entertainments of any kind that was the place for the additional exception, and it would have been very sim¬ ple and easy to express. "The reason for the exception was doubt¬ less the hardship involved in the expense of making over a building used as a theatre or opera house whereas there would be no such hardsbip in making an ordinary ball¬ room or meeting-room conform to the re¬ quirements of the Building Code. "The Court says that owing, however, to the large number of buildings that may be affected by this ruling, and to the delay that must ensue in reviewing it because of the summer recess, and to afford a reasonable time to apply to the Board of Aldermen to make the ordinance conform to the intention claimed but not expressed, the Injunction, so far as it applies to tbe use of the build¬ ing for dances, lodge and political meetings and similar entertainments (but not includ¬ ing minstrel shows), will be suspended until November 15, 1916." This decision practically prohibits the use of any premises for amusement pur¬ poses other than theatres or opera houses erected and in use as such prior to June 3, 1904, where accommodations are provided for more than 300 persons, unless the premises conforms to the pro¬ visions nf .'\rticle 25 of the Building Code (theatres and other places of amusement). As a result of this de¬ cision, the Bureau of Buildings of Man¬ hattan is disapproving all applications for the use of existing buildings as places of public amusement where accommoda¬ tions are provided for more than 300 per¬ sons, e.xcept theatres and opera houses legally exempt, unless in conformity with the theatre law. Unless the law is changed before November IS, 1916, scores of places now used as dance halls, etc., will be forced to discontinue such use until they have been made to con¬ form to the requirements of Section 25 of the Buildintr Code. A third decision—that of Mr. Justice Bijur—in the case of Altschul v. Lud¬ wig in tlie matter of the Dewey Theatre, while directly affecting the powers of the Board of Examiners will also apply with equal force to the new Board of .-Kppeals, which will succeed the Board of Examiners on October 1, 1916. The decision denies to this latter Board the right to vary or modify the funda¬ mental law relating to buildings, as set forth in the Building Code, excepting in strict conformity with the provisions of the Greater New York Charter. The practice of the Board in the past has been to approve appeals made to it which did not appear to be detrimental to the public interests, although not strictly in accord¬ ance with the Building Code. While the decision is rendered m a special case, its application must be considered as general and placing a definite limitation upon the powers of the Board of Ex¬ aminers and its successor, the new Board of Appeals, until a higher court has decided otherwise, Mr. Justice Bijur's decision in full is as follows: "This action was begun August 5. 1915 by the plaintift as a taxpayer to enjoin the first named defendant as Siiiierintpnrlont nf HiiMd- ings from approving plans filed April 1915 and issuing a permit for the alteration and reconstruction of a building known as the Dewey Theatre, in this city. The remaining parties are. respectively, owner and tenant of the building. A temporary injunction had been granted, but was subsequently vacated. The Appellate Division reversed the vaca¬ tion order and granted the motion to con¬ tinue the temporary injunction. On appeal to the Court of Appeals, involving two certi¬ fied Questions, to which I shall refer later on. the decision of the Appellate Division was affirmed, with opinion reported In 216 N. Y., 4.59. The action for the Injunction has now been tried before me on the merits. "Before the action was begun the Superin¬ tendent of Buildings had disapproved the plans, whereupon an appeal was taken under Section 411 of the Greater New York Charter to the Board of Examiners. This Board, after a liearing, approved the plans upon certain conditions and returned them to the Superintendent for his approval. After the temporary in'unction was di'^solved, the Sup¬ erintendent, believing himself bound by the decision of the Roard. annroved tbe plans and issued a permit, but the work after its commencement was interrupted by the de¬ cision of the Appellate Court hereinabove referred to. "The testimony shows that this bnilding was originally a church, known as Trinity Chapel, constructed about 1876. In 1S96 it was lawfullv converted into a hotel and music hall, where refreshments and bever¬ ages were sold. In this form it varied from its original condition so far as structural changes were concerned only to the extent that the front was rebuilt and ten rooms there installed (in order to comply with the law requiring th.nt amount of accommoda¬ tion in a hotel). The floor was leveled and a gallery built on both sides. TTiere was no stage, proscenium arch or curtain, but mere¬ ly a platform of the ordinary kind for musi¬ cians. "In 1^98 a number of successive applica¬ tions for permission to alter tbe building into a theatre were filed ; but so far as the records of the Departnient show they were all rejected by the Commissioner of Build¬ ings of this borough, who, with two other Commissioners, cnnst'tntcd the Building De¬ partment under the Greater New York (bar¬ ter (Laws of 1897, chap. 378, sec. 644, et seq,).