#### The People ex rel. Kate C. Brown, Relator, *v.*Thomas J. Brady, as Commissioner of Buildings, Defendant.

(Supreme Court, New York Special Term,

January, 1899.)

New York city — Height of dwelling houses — Chap. 454 of 1885.

The act regulating the height of dwelling-houses in the city of New York (Laws of 1885, chap. 454) is still in force and is neither repealed ■or affected by chapter 557 of the Laws of 1897, nor by any intermediate legislation.

Motion for a peremptory mandamus to compel the defendant, as commissioner of buildings, in the city of New York, to approve plans and specifications for a building proposed to be erected by the relator. The facts upon which the controversy arose are set forth in the opinion.

Louis Campora, for relator.

John Whalen, corporation counsel, for defendant.

Scott, J.

The relator, who is the owner of two lots of land on Ninety-fifth street, in the city of New York, has filed with the defendant plans and specifications for a building which she proposes to erect designed to be occupied as a dwelling-house by fourteen famillies. These plans indicate that the proposed building is to contain seven stories and to be erected to the height of seventy-three feet and six inches. The building is to be of non-fireproof construction, and it is conceded that Ninety-fifth street is only sixty feet in width. The defendant is commissioner of buildings of the city of New York, having administrative jurisdiction over that portion of the city of *83New York in which the relator’s property lies. It is his duty to pass upon any question relative to the mode, manner of construction or material to he used in the erection or alteration of any building to be erected within the borough of Manhattan (in which relator’s property is situated), and to require that such mode, manner of construction or materials shall conform to law, and until relator’s plans have been approved by him she cannot lawfully proceed with the erection of her projected building. The defendant refuses to approve the said plans and specifications, because they provide for the erection, fronting on a street only sixty feet in width, of a non-fireproof building exceeding seventy feet in height, basing his refusal upon an act known as chapter 454 of the Laws of 1885. The relator, claiming that this act relied on by the defendant has been repealed and superseded by later enactments, applies for a peremptory mandamus requiring the defendant to approve her plans and specifications. Yo disputed questions of fact are involved. The act referred to is entitled “ An act to regulate the height of dwelling-houses in the city of New York.” That it is a valid enactment and within the constitutional power of the legislature has already been decided. People ex rel. Kemp v. D’Oench, 111 N. Y. 359. It provides, in its first section, that *4C*the height of all dwelling-houses, and of all houses used or intended to be used as dwellings for more than one family in the city of Yew York, shall he regulated in proportion to the width of the streets and avenues upon which they front.”- The second section defines the limits of height as follows: “ Such height * * * shall not exceed seventy feet upon all streets and avenues not exceeding sixty feet in width, and eighty feet upon all streets and avenues exceeding sixty feet in width.” It is conceded that, if this act is still operative, the plans proposed by the relator are unlawful. The relator bases her contention that it has ceased to be operative, upon a series of acts passed by the legislature since 1885, regulating the minimum height to which non-fireproof buildings may be erected. These acts, which are known as chapter 275, Laws of 1892 (§ 20), chapter 723, Laws of 1896, and chapter 557 of the Laws of 1897, each provide that all buildings erected after their passage, to be used as an hotel or as a theater, hospital, asylum, institution for the care and treatment of persons, or in whole or in part as a school or place of instruction, the height of which exceeds thirty-five feet, shall be built fireproof, and that “every other building,” the height of which exceeds a certain number of feet, shall also bé built fireproof. *84The specifications of the buildings, other than hospitals,, hotels, schools, etc., which must be built fireproof, have varied from time to time. In the act of 1892 all such buildings over eighty-five feet in height were required so to be built; by .the act of 1896 this height was reduced,to seventy feet, and by the act of 1897 it was increased, to seventy-five feet. The relator contends that this latest statute of 1897 covers the whole subject of the permissible height of buildings, and that the only limitation now prescribed by law is that, if more than seventy-five feet in height, they must be fireproof, and that, by necessary implication, the act of 1885 must be deemed to have been repealed. It needs the citation of no authorities to sustain the proposition that the repeal of a statute by implication will not be effected, unless the two statutes are obviously repugnant, or because, by the reason of the fact that a later statute covers the whole subject treated in a former statute, or for other reasons, it is apparent that .the legislature in passing the later statute intended to repeal the former. Eo such condition of affairs is shown here. There is certainly no inconsistency between the act of 1885 and the act of 1897. The former act was limited to dwelling-houses, and regulated their height solely with reference to the width of the street or avenue on which they fronted. That width alone afforded the test of the height to which they .might be built. The question whether or not their construction was to be fireproof was not referred to. The act of 1897, on the other hand, deals only with the question of fireproof construction. Every building over seventy-five feet in height, whenever erected, on a wide street or a narrow, a dwelling house or a factory, must be fireproof. With buildings under seventy-five feet (except the special classes limited as to fireproofing to thirty-five feet), the act of 1897 did not in anywise interfere. The result of the two statutes standing together is, that on a street like Einety-fifth street, no dwelling-house, non-fireproof, can be erected, exceeding seventy feet in height. Any building other than a dwelling-house can be erected on such a street to any desired height, but if that height be more than seventy-five feet, the building must be fireproof. There is no repugnancy in these provisions. The act of 1885, therefore, remains still effective, and as the relator’s contemplated building confessedly violates its' provisions, the defendant was right in refusing to approve the plans. The height to which fireproof dwelling-houses can be erected, no question concerning which is involved in this application, is regulated by chapter 321 of the Laws of 1897.

Motion denied, with $10 costs.