#### The City of New York, Respondent, *v.*M. Wineburgh Advertising Company, Appellant.

(No. 4.)

First Department,

March 6, 1908.

Municipal corporation — sky sign, city of New York — permit — penalty.

A permit to erect in the city of New York a “sky sign” nine feet high does not authorize the erection of a sign twenty-five feet high, and one who erects such sign without a permit is subject to a penalty of §50 for erecting the sign and a further penalty of §250 for maintaining it.

No sky sign of whatever dimensions can be lawfully erected in the city of New York without the filing of plans and specifications and the issue of a permit.

Laug-hlin, J., dissented, with opinion.

*642■ Appeal by the defendant, the M. Wineburgh Advertising Company, from an order of the Appellate Term of the- Supreme Court, entered in the office of the clerk of' the .county of New York on the 10th day of December, 1907, affirming á judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 27th day of June, 1907.

*Bouis Ma/rshall,*for the appellant.

*Theodore Gonnoly*and *John P, 'O'Brien,*for the respondent.

Scott,- J.:

- Appeal by defendant from the determination of the Appellate Term affirming a judgment of the Municipal Court for the recovery of a penalty.

■ We have recently- had occasion to discuss at some length the provisions of the Building. Code of the city of Hew York with reference to the erection of so-called *“*sky signs ” upon buildings, and ■ concluded that such erections *were*structures which could not lawfully be erected until plans therefor had been, filed and á permit issued»' *(City of New York*v. *Wineburgh*Advertising. *Co.,*122 App. Div. 748.)

In the, present case| the defendant filed plans and specifications for a sign' nine feet -high and obtained the approval thereof and a permit. It thereupon proceeded to erect -and maintain a ■ sign twenty-five feet high, and, after., notice., to. remove it, omitted to do so for more than ten days. ■

■ It. is manifest that a permit for a sign nine feet.high furnished no authority- to erect, one twenty-five feet high, and hence, in fact- and legal effect, defendant erected its sign, and has maintained it without having applied for or obtained any permit therefor. It thus sub jected itself- to á penalty of $50 for erecting the sign, and to a further penalty of $250 for maintaining it. (Building Code, § 150.) ■ That judgment has been-rendered against it for .only one penalty gives the defendant no cause to complain. In' our opinion no such structure as a “ sky sign,” of whatever dimensions, can be lawfully erected in the city of Hew York without ..the filing of plans and- specifications and the issue of a permit. The question- of the constitutionality of the “ sky sign ” ordinance, which is sq earnestly *643argued upon the briefs, and which is certainly not free from doubt, does not, as we regard it, arise upon the present appeal. The determination of the Appellate Term must be affirmed, with costs.

_ Patterson, P. J., McLaughlin and Houghton, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I am of opinion that the record fairly shows that the penalty was imposed for a violation of the ordinance prescribing the dimensions of the sign, and not for a violation of the ordinance requiring that plans of the proposed structure be filed, and the learned counsel for the city so concedes. The record, therefore, I think, fairly presents the question as to whether the ordinance limiting the dimensions of a sign is valid. I am of opinion that it is not. It is entirely proper and quite essential to public safety that no structure should be erected without the approval of competent local authorities who should pass upon the plans, with a.view to determining the safety of the structure, but this ordinance, arbitrarily and without regard to the question of safety, limits the size of a sign in a manner to prohibit the construction of a sign, no matter of what material or how securely attached, at an elevation above the level of the streets at which other structures, which cannot be erected with greater safety or security, are permitted. It is too plain for argument that a sign may be erected which, assuming this ordinance to be valid, would be a violation thereof at an elevation and of such material and with such support arid fastenings that it would be at leást as safe as the buildings and towers which are permitted to be erected under the forms of law upwards of forty stories and over 500 feet in height. The ordinance, therefore, I think, has not been properly framed, for it may not be said as matter of law that no sign of dimensions greater than those specified .in the ordinance can be erected without jeopardizing the public safety.

I, therefore, vote to reverse the determination of the Appellate Term and the judgment of the Municipal Court.

Determination affirmed, with costs..