People ex rel. Corn Hill Realty Co. v. Stroebel

• Decision Date: 18 November 1913
• Citation: 209 N.Y. 434,103 N.E. 735
• Parties: PEOPLE ex rel. CORN HILL REALTY CO. v. STROEBEL.
• Court: New York Court of Appeals Court of Appeals

209 N.Y. 434

103 N.E. 735

PEOPLE ex rel. CORN HILL REALTY CO.

v.STROEBEL.

Court of Appeals of New York.

Nov. 18, 1913.

Appeal from Superior Court, Appellate Division, Fourth Department.

Certiorari by the People, on the relation of the Corn Hill Realty Company, to review a decision of William L. Stroebel, as Superintendent of Buildings of the City of Utica, N. Y., denying relator's application for a building permit. From an order of the Appellate Division in the Fourth Department confirming the decision and dismissing the writ (156 App. Div. 457,141 N. Y. Supp. 1014), relator appeals. Reversed.

G. C. Morehouse, of Utica, for appellant.

Seward A. Miller, of Utica, for respondent.

WERNER, J.

[1] On the 10th of September, 1912, the relator applied to the superintendent of buildings of the city of Utica for permission to erect a building on Clinton place. The dimensions of the building were stated to be as follows: 110 feet wide, about 122 feet long, and about 16 feet high, and it was to be placed on a lot 120 feet in width by 200 feet in depth. The application states that the building is ‘to be used and occupied for buying, selling, dealing in and otherwise disposing of vehicles, automobiles, motor cycles and other personal property.’

The record contains a number of ordinances of the city of Utica which are pertinent to such matters as the authority of the superintendent of buildings, the character of the structures to be erected under his supervision, and the conditions which must be complied with by an applicant for a building permit; but there is only one which, in our view of the case, need be quoted . This particular ordinance provides that: ‘No person, firm or corporation shall hereafter maintain or conduct a public garage for the storing, maintenance, keeping, caring for or repairing of automobiles or motor vehicles within the city limits, without permission of the superintendent of buildings.’ No. 215, § 1. There are other provisions of the same ordinance, but they are purely incidental to the real question at issue, and it would serve no useful purpose to refer to them at length. It is enough to say that the superintendent of buildings refused to issue a building permit to the relator because, to quote the superintendent's own language, ‘it manifestly appeared from an inspection of the application and plans submitted therewith that the fair intention of the plans and specifications was to erect, maintain and conduct a public garage.’

In view of the peculiar phraseology of the ordinance above quoted (No. 215, § 1), and the specific ground upon which the respondent refused the relator's application for a building permit, we have reached the conclusion that the respondent's determination, and the order of the Appellate Division affirming it, are not sustained by the record now before the court. It will be noted that the ordinance forbids the maintenance or conduct of a public garage. It does not prohibit the erection of a building which, although adapted to such a use, could be used for other purposes not forbidden. In these circumstances we must look to the relator's application and to the other evidence in the record to ascertain what there is to support the respondent's conclusion that it was the relator's intention to erect, maintain, and conduct a public garage. The relator's application in and of itself discloses no such intention. On the contrary, the statement is that the building is to be ‘used and occupied for buying, selling, dealing in and otherwise disposing of vehicles, automobiles, motor cycles and other personal property.’ In this description of the purposes for which the relator's proposed building is to be used, we find nothing that is within the prohibition of the ordinance.

[2] There is nothing in the ordinance which purports to limit the right to erect and occupy buildings for the sale of vehicles, automobiles, and motor cycles, and, it may be said in passing, any attempt to exercise any such power would be unconstitutional, for the business of selling such...