City of Buffalo v. Chadeayne

• Decision Date: 07 June 1892
• Parties: CITY OF BUFFALO v. CHADEAYNE.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 163

31 N.E. 443

CITY OF BUFFALO

v.CHADEAYNE.

Court of Appeals of New York,

Second Division.

June 7, 1892.

Appeal from superior court of Buffalo, general term.

Action by the city of Buffalo against George H. Chadeayne to recover a penalty for an alleged violation of an ordinance. From a judgment of the general term, reversing a judgment entered upon a verdict directed by the trial term, on appeal from the municipal court, in which a new trial was demanded, (7 N. Y. S. 501,) plaintiff appeals. Affirmed.

Philip A. Laing, for appellant.

Giles E. Stillwell, for respondent.

HAIGHT, J.

This action was brought to recover a penalty for an alleged violation of an ordinance pertaining to the erection of wooden buildings within the prescribed fire limits of the city of Buffalo. On the 11th day of July, 1887, the common council of the city passed a resolution granting permission to the defendant to erect seven frame wooden houses upon premises owned by him, and specifically described. This resolution was duly approved by the mayor, and thereupon the defendant entered into a contract for the materials with which to make such structures. He made excavations for the cellars, and laid a portion of the walls, prior to the 1st day of August. On that day the common council, without notice to him, passed a resolution which it is claimed rescinds the former resolution. The last resolution was approved by the mayor on the 15th day of August, and on the 10th day of November a copy thereof was served upon the defendant. Oral notice was given to him of the passage of the resolution on the 2d day of August, prior to its approval by the mayor. He, however, continued the construction of his buildings, and at the time the notice, with a copy of the resolution, was served upon him in November, several of the buildings had their roofs on, and the rest were in process of construction. This action was then brought for the penalty provided for in the ordinance, and resulted in the judgment which is the subject of this review. The charter of the plaintiff (chapter 519, Laws 1870) provides that ‘the city shall have power by its common council from time to time to enact ordinances, * * * to prescribe the limits within which wooden buildings shall be erected, and the manner in and material of which all buildings shall be constructed within such limits. Every building erected or placed contrary to any ordinance passed under the last above provision shall be deemed a common nuisance, and may be abated as such.’ Title 3, § 8, subd. 4. Pursuant to this provision, the common council enacted ordinances, among which we find the following: ‘No person shall, without permission of the common council, erect, place, or move any building constructed in whole or in part of wood, within the limits of the city of Buffalo, as defined by section 2 of title 1 of the charter of said city.’ Ord. c. 5, § 20. The defendant's buildings are within the fire limits, as prescribed by the ordinance. He therefore had no right to construct them without the permission of the common council. Such permission, as we have seen, was granted on the 11th day of July, 1887, and thereby he acquired the right to proceed with the construction of his buildings, and to possess and enjoy the comforts they might afford. As soon as he had entered upon the construction of the buildings, and incurred liabilities for the work and material, he had a property interest in them. In this right he was entitled to protection. People v. O'Brien, 111 N. Y. 1-62, 18 N. E. Rep. 692; In re Union El. R. of Brooklyn, 112 N. Y. 61-75, 19 N. E. Rep. 664; People v. Otis, 90 N. Y. 48-52;Stuart v. Palmer, 74 N. Y. 183;Detroit v. PlankRoad Co., 43 Mich. 140, 5 N. W. Rep. 275.

It is claimed by the appellant that a municipal board may reconsider its action at any time before private vested rights have resulted from such action, and that the defendant could not acquire vested rights as against the police power of the state or municipality. For the purposes of this case we may concede ...