Opinion
October 20, 1911.
James E. Doherty, for the appellants.
William T. Kennedy [ John P. O'Brien and Archibald R. Watson with him on the brief], for the respondent.
The applicants in this proceeding for an order directing John Thatcher, as superintendent of buildings for the borough of Brooklyn, to approve of certain plans filed in his office on or about the 13th day of May, 1911, were the lessees of the premises in question. The application was duly filed on the date above mentioned, and asked for the approval of the plans of five bungalows. Prior to the filing of this application, and on the 4th day of May, 1911, the board of estimate and apportionment adopted a resolution in the following language:
" Resolved, That the Board of Estimate and Apportionment of the City of New York, in pursuance of the provisions of section 990 of the Greater New York Charter, directs that upon the date the Commissioners of Estimate and Assessment, appointed in the aforesaid proceedings, file their oaths, the title in fee to each and every piece or parcel of land lying within the lines of said West Twenty-fifth Street, from Surf Avenue to a line distant about 260 feet southerly from and parallel therewith, and comprising all of Damage Parcels Nos. 89 and 90, in the Borough of Brooklyn, City of New York, so acquired shall be vested in the City of New York."
The lands embraced in these two damage parcels constitute the premises involved in this proceeding, and it appears that the applicants had, prior to making the application here involved, constructed the bungalows, and while the application was in form one to approve of the plans for buildings to be constructed, it was, in fact, an application for the approval of plans for buildings which had already been constructed in disregard of the provisions of section 4 of the building code of the city of New York. The application of May thirteenth was not acted upon because of certain defects in the description of the premises, but it appears that upon the 26th day of May, 1911, the objections raised by the building department had been met, and that it was expected that a permit would be given on the following day. In the meantime, and on the 26th day of May, 1911, the commissioners of estimate and assessment were duly appointed, and on the following day the said commissioners took their qualifying oaths, and, under the terms of the resolution of the board of estimate and apportionment of May 4, 1911, the title to the property vested in the city of New York, and the department of buildings declined to issue the permit for the construction of the buildings.
By the terms of section 990 of the charter of Greater New York (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658), if the premises had no buildings upon them at the time that the commissioners of estimate and assessment became qualified, the title vested in the city of New York; no one questioned this, but it is urged on the part of the applicants that there were buildings upon the premises and that title could not vest until after the expiration of six months, and that it was the duty of the department of buildings to issue the permit. There is no doubt that there were certain buildings upon the premises in question, but it is equally certain that these buildings had been constructed in violation of the provisions of the building code of the city of New York, and if the applicants are now permitted by a writ of mandamus to compel the superintendent of buildings to approve of the plans, thus giving legal recogtion to the existence of these buildings, it would operate to permit them to take advantage of their own wrongful act and to impose an added burden upon the public. We think there is a failure to show such a legal right to the relief demanded, and that the learned court at Special Term was fully justified in denying the extraordinary relief of a writ of mandamus. The statute, we believe, demands that the buildings erected upon the premises shall be buildings lawfully erected in order to exempt them from the provision relied upon by the city of New York as vesting title immediately, and the applicants, having elected to construct buildings without complying with the provisions of law designed for the preservation of the general welfare of the community, cannot be permitted to have the protection of remedies designed only for the compelling of lawful rights improperly denied.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., BURR, CARR and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.