The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-05-06

Eaaf ~ WE W. w wv
fBse ~ tsests Ag6uHa ~ ~ eeH-
aemara Alana WIN t"e isad ease
ieesFe ne supfeH'e tSsst WHfS
"itutHna gVaWs' zee fufHeu WV"
a,rssAaa Co,fr hiHics 4cgst declfed
sss,sfiay Tins shilc IN ooutt c1fnpel ths
auhaflnienasnt NJ Buildings Nv Tbs hfohSi
rtisioh 4 Rsvllr ~ sprrBvs Tho pians
,,d specification hled ~ lawyer Hasoid
l.,le fee The ererslrH N he hrW houas
tp fhs ngont. w Nv vas IN doaiht wh~thsf
b. eruid mnn,lnmus ths superintendent
IL, srsn, swain y tafmtt - y he pfeaene
hp,iar ~ tho nov sits.
Swain haa contracted 4 haiti ~ buyina
up nrpns pfup~fiy that Wa abou, ~ be
epnsksmsd hy tho rlty Tor afest opening
pfpo-,s When tho ptoperty WA con-
damnad ha GIT q generous compensation,
and then bUiaht In his houss NJ action.
stch structures asll Tor little or nothing,
and VIZ Swain. having got hia botss
back. would pfocrrd Nv movs u 10 some
other IN which hs had sighted ~ likely
for condemnation
Justice Scott refers somewhat aagcastlcally
IN this scheme, hut points out that tho city
Ia practically rrmediless. Tho new lot
hains SWANS, tho mere fact that u n likely
In tho future 10 be condemned canno be
nsed 10 debar swain from erecting on u
any building that conforms with tho laws.
Rut in tho matter of tho moving permit,
Justice Scott remarks that he would lind
difficulty In granting u mandafnts were
tho question properly before him. lie
him. and therefore lays u aside for the
present.
LAWYER Swain il aaid 10 have Melted n
good thing out Of his moving deals. His
house came from ~. Pauls place, near
Washington avenue. TO its present. site,
and he seeks to move IL now 10 Belmont
and Eden streets. Former Police Captain
James Price, who owns property in that
vicinity. IL the mar who got 'on, and he
complained to Reville that, besides the
house that Swain wants to move now, the
lawyer has several other houses which
he mas moved around from one to another
place ad demnandum.
Justice SCOTS opinion reads in part;
In order to remove his house 20 the pro-
posed new location and eroot II there IL will
be necessary for the relator TO have his plans
and specifications approved and obtain a
permit to move the house through and along
the streets. The present application con-
Germs only the approval OF the plans and
specifications. 1t clearly appears that the
respondents refusal to formally approve
them Is not based upon any objection 10 or
defect in them as plans and specifications.
but solely upon the belief that the REALTORS
intention is merely to enhance the amount
Of award he will receive for his lot in the
condemnation proceedings and that IL Is not
intended In good faith TO erect the building
as a bona fde Improvement.
There is some evidence that the same build
ing has had q peripatetic career. having been
moved several times. and always to a lot
about to be acquired by the city for street
purposes. In my opinion. the reasons thus
actuating the respondent are not sufficient
to justify him in his refusal to approve the
plans and specifications. His sole duty Is
TO determine whether or not the plans and
specifications are sufficient as such. and 1t ia
no business Of his where the building is to
be erected except as the location may bear
on the sufhciency Of the plans and specihca-
tons. Up TO the time that the city actually
acquires title to a piece Of property the owner
may improve it as he will. and no statute or
act OF any municipal authority which at
tempts to deprive him OF the right TO i'm
prove his property can be upheld.
Neither the defendant nor any city oflcer
has the right to arbitrarily refuse any neces-
sary permit, merely because In dealing with
his own property. as he has a constitutional
right to do. the relator may increase the
award he will hereafter obtain. To refuse a.
permit upon this ground alone savors OF
coercion and Is y anlfestly illegal. / am.
therefore. OF opinion that a peremptory
mandamus must issue to the respondent
requiring him to approve the plans and speci-
fcations.
AS is noted above. the relator will require
not only the approval Of his plans and speci-
fcations. but also a permit to move his house
through and along the streets. and 1t appears
that such a permit was at one time issued by
the Borough President, Although the ques-
ton OF directing the issue Of such a permit
was included in the argument before me, 1
do not understand that 1t is involved in this
particular proceeding. If 1t were. l should
find difficulty in making such an order. 1t
appears from some of the papers that such
permits have frequently been issued In the
borough Of Tit Bronx. but II would. as I think.
be difficult to find warrant In law for any
municipal oflcer to grant permission for such
use and obstruction Of the highway as must
be necessarily involved in moving o house.
That question can, however. be dealt with
when and IL 1t arises. All that | decide upon
the present application is that the respondent
should approve the plans and specifications.