Opinion
Argued May 20, 1940
Decided July 24, 1940
Appeal from the Supreme Court, Appellate Division, First Department, COLLINS, J.
Joseph Ferber for appellant.
William C. Chanler, Corporation Counsel ( Francis J. Bloustein and Paxton Blair of counsel) for defendants, respondents.
George G. Lake for intervener, respondent.
Before the petitioner acquired his leasehold of the lodging house in question, the erection therein of the so-called cubicles had been completed pursuant to plans that had been approved by the Department of Buildings and a certificate of occupancy had been issued by the Commissioner of Buildings. No claim is made that this certificate of occupancy was not a "certificate" in the sense of section 301 of the Multiple Dwelling Law (Cons. Laws, ch. 61-a). Section 301 provides: "No tenement house shall hereafter be occupied in whole or in part for human habitation until the issuance of a certificate by the department charged with the enforcement of the tenement house law or of this chapter that said building conforms in all respects to the requirements of the tenement house law or of this chapter. No building hereafter constructed as or altered or converted into a multiple dwelling shall be occupied in whole or in part for human habitation until the issuance of a certificate by the department charged with the enforcement of this chapter that said building conforms in all respects to the requirements of this chapter. Such certificate shall be issued within ten days after written application therefor if said building at the date of such application shall be entitled thereto. Such a certificate, or the record in the department aforesaid that such a certificate has been issued or a statement signed by the head of such department that such a certificate has been issued, may be relied upon by every person who in good faith purchases a multiple dwelling or who in good faith lends money upon the security of mortgage covering such dwelling. Whenever any person has so relied upon such certificate, no claim that such dwelling had not, prior to the issuance of such certificate, conformed in all respects to the provisions of this chapter shall be made against such person or against the interest of such person in a multiple dwelling to which such a certificate applies or concerning which such a statement has been issued." (Italics supplied.) Petitioner was a "purchaser" within the intent and meaning of this section 301 of the Multiple Dwelling Law. (See Real Prop. Law [Cons. Laws, ch. 50], § 290, subd. 2.)
It follows that the Board of Standards and Appeals had no authority to revoke as against the petitioner the certificate of occupancy issued to his predecessor in interest by the Commissioner of Buildings. The above-stressed words of section 301 of the Multiple Dwelling Law are so explicit as to exclude any latitude of interpretation. Accordingly, section 646 (g) of the Charter of the City of New York (effective January 1, 1938) must be taken to apply only in cases where there has been no reliance by a purchaser or mortgagee upon a certificate that there has been compliance with the law.
The orders should be reversed, without costs, and the matter remitted to the Special Term for further proceedings in accordance with this opinion.
I dissent upon the grounds that (1) there is neither allegation nor proof of good faith on the part of the purchaser, a close relative of the seller, so as to make applicable the provisions of section 301 of the Multiple Dwelling Law (Cons. Laws, ch. 61a), and (2) the doctrine of estoppel may never be invoked, by reason of unauthorized acts of its officers or agents, to prevent a state or municipality from properly exercising its police power. ( People v. Santa Clara Lumber Co., 213 N.Y. 61, 67.)
LOUGHRAN, FINCH, RIPPEY, SEARS and LEWIS, JJ., concur in per curiam opinion; CONWAY, J., dissents in opinion; LEHMAN, Ch. J., taking no part.
Orders reversed, etc.