People ex rel. M. Wineburgh Advertising Co. v. Murphy

Decision Date30 March 1909
Citation195 N.Y. 126,88 N.E. 17
PartiesPEOPLE ex rel. M. WINEBURGH ADVERTISING Co. v. MURPHY, Building Superintendent.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

The People, on the relation of the M. Wineburgh Advertising Company, apply for a writ of mandamus to Edward S. Murphy, Superintendent of Buildings for the Borough of Manhattan. From an order (60 Misc. Rep. 536,113 N. Y. Supp. 854) denying the relator's motion for a writ of mandamus, relator appealed to the Supreme Court, and the order was reversed (129 App. Div. 260,113 N. Y. Supp. 855), and defendant appeals. Affirmed.Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel), for appellant.

Louis Marshall, for respondent.

CHASE, J.

The relator is a domestic corporation engaged in the business of constructing and maintaining advertising signs and displaying thereon advertisements pursuant to contracts with advertisers.

On June 15, 1908, the relator duly filed an application for a permit to erect a sky sign on the top of a building at 27 East Twenty-Second street, in the city of New York, and such application was accompanied by a plan thereof in detail, and also with the consent of the owner of the real property on which it was proposed to erect the sign. From such application and the accompanying papers it appears that the building upon which it is proposed to erect the sign is an office building 10 stories in height, and that it is proposed to erect the sign in compliance with the ordinances and regulations of the city of New York, except that the proposed sign is more than 9 feet in height above the front wall or cornice of the building. The proposed sign would be 5 feet 6 inches above the roof, and the top thereof would be 20 feet 6 inches above said front wall or cornice. It is proposed to erect said sign between 40 and 50 feet back from the building line on Twenty-Second street, and to face it northwest and substantially in the direction of the rear of the building. It is intended for the display of advertisements to be seen from points in the city northwest of said building. The defendant refused to approve the specifications, plans, and application, or to issue a permit for the erection of said sign, solely because of an ordinance of said city limiting the height of sky signs to 9 feet above the front wall or cornice of the building on which it is to be erected. The application was then made for a peremptory writ of mandamus to compel the issuing of such permit. The motion being denied, an appeal was taken to the Appellate Division, where the order was not only reversed, but a writ was granted commanding the defendant ‘to examine the plan and application filed by the relator and described in its petition with reference to the material to be used and the method of construction thereof and as to the safety thereof, and if he shall find that the said structure is to be built of proper materials and in a proper manner and that the proposed structure is safe and secure, then to approve said application and issue a permit thereon.’

The consent of the owner of said real property is based upon a substantial consideration paid to her therefor, and the relator has entered into a contract with an advertiser for the use of such sign, the consideration for which is also a substantial sum.

It is not open to controversy that, if the relator is not allowed to erect and maintain such sign, the owner of said building and the relator as her lessee are deprived of some rights in the beneficial use and free enjoyment of private property without direct compensation. The ordinance of the city of New York to be construed on this appeal defines a sky sign, and as so defined it is: ‘Any letter, word, model, sign, device or representation in the nature of an advertisement, announcement or direction supported or attached, wholly or in part over or above any wall, building or structure shall be deemed to be a ‘sky sign.”

The ordinance (section 144 of the Building Code of the city of New York) also provides as follows:

‘Sky signs shall be constructed entirely of metal, including the uprights, supports and braces for same, and shall not be at any point over nine feet above the front wall or cornice of the building or structure to which they are attached or by which they are supported.

‘All fences, signs, billboards and sky signs shall be erected entirely within the building line and be properly secured, supported and braced and shall be so constructed as not to be or become dangerous. Before the erection of any fence, sign, billboard or sky sign shall have been commenced a permit (for) the erection of the same shall be obtained from the superintendent of buildings having jurisdiction as provided in part 2, § 4, of this Code. Each application for the erection of any fence, sign, billboard or sky sign shall be accompanied by a written consent of the owner or owners or the lessee or lessees of the property upon which it is to be erected.’

It is not the erection over and above any wall, building, or structure that is prohibited, but the thing constructed, plus the letter, word, model, sign, device, or representation in the nature of an advertisement, announcement, or direction painted or pasted thereon or attached thereto. So far as appears, there is no absolute limitation upon the height that tanks, towers, or chimneys can be erected, nor as to flagpoles, balustrades, finials, or other structures ornamentalor useful. If it appeared in the relator's application that the structure proposed to be erected was not for the purpose of advertising, but for any other purpose, fancy, or whim, it would not come within the prohibitive clause of the ordinance. A further examination of the ordinance shows that it relates wholly to erections within the building line and upon private property. It is in no way affected by the rules of law relating to street or municipal property. As private property, the owner of the building on which it is proposed to erect the structure can use it in any way that to her may seem desirable, except as such use is subject to the implied obligation resting upon every owner of property to use it so as not to interfere with the rights of others, and also subject to such restrictions as are necessary for the public welfare.

The police power, so difficult to define, but so frequently invoked, is confined to such reasonable restrictions and prohibitions as are necessary to guard public health, morals, and safety, and to conserve public peace, order, and the general welfare. Regulations and ordinances within such general definition are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of private property. Compensation for such interference with and restriction in the use of property is found in the share that the owner enjoys in the common benefit secured to all.

Does the ordinance, so far as it relates to sky signs, come within the police power, or is its purpose simply to prevent or restrict a lawful business which it is alleged has been extended until it has become offensive to good taste? It is not asserted by the city that a sky sign, as defined in the ordinance or as proposed by the relator, has any relation whatever to or effect upon public health or public morals. The only alleged reason for the passage and enforcement of the ordinance is that a structure upon which advertisements are to be placed constitutes a danger by reason of the possibility of its falling into a public street. The danger, so far as it interferes with firemen in passing over the roof of a building, is apparently avoided in the case now before us by the provision that the structure on which the sign is to be erected will have a clear space of 5 feet 6 inches between the roof and the bottom of the proposed structure. A structure 9 feet in height would seem to be as great an interference with firemen in passing over the roof as one erected at a greater height.

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