New England Trust Co. v. City of Boston

• Decision Date: 25 May 1938
• Citation: 300 Mass. 321,15 N.E.2d 255
• Parties: NEW ENGLAND TRUST COMPANY, trustee, and others v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 321

15 N.E.2d 255

NEW ENGLAND TRUST COMPANY, trustee, and others v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1938

April 8, 1938.

Present: RUGG, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Municipal Corporations, Liability for tort. Public Officer. Boston. Building Laws. Election.

The institution by the city of Boston of a suit in equity under Section 129 of St. 1907, c. 550, to enforce a demand made by the building commissioner under Sections 4, 5, as amended, did not preclude the commissioner from taking action under Section 5 to enforce a later demand made by him after a further inspection as to different conditions which arose after the suit was begun.

The building commissioner of Boston, appointed under St. 1907, c. 550, is a public officer, and no action of tort could be maintained against the city for acts ordered by him in good faith in performance of his duties under Sections 4, 5, as amended.

BILL IN EQUITY filed in the Superior Court on May 19, 1930. After a hearing by Goldberg, J., a final decree was entered. The plaintiffs appealed.

J. L. Sheehan, (W.

F. Byrne with him,) for the plaintiffs.

E. K. Nash Assistant Corporation Counsel, for the defendant.

COX, J. On May 19 1930, the plaintiffs filed this bill in equity in the Superior Court by which they sought to enjoin the defendant from tearing down what remained of their building, numbered 17 Beacon Street, in Boston. No injunction ever issued. On May 26, 1930, demolition of the building began and was continued until the building was completely removed. It is agreed that the building was taken down by the building commissioner of the city of Boston, acting under St. 1907, c 550, Sections 4 and 5, as amended by St. 1923, c. 462, Sections 2 and 3. The plaintiffs were allowed to amend their bill on December 16, 1935, by alleging that the defendant had torn down the building, and removed and disposed of the building materials "for which these plaintiffs claim damages," and by adding a prayer that the amount of damages be ascertained. To this amendment, the defendant answered that the building was caused to be removed by the building commissioner of the city of Boston acting under St. 1907, c. 550, Section 5, as amended, and that the building materials were disposed of in accordance with that statute. The case was tried in April, 1937. The trial judge filed "Findings of Fact, Rulings and Order for Decree," and the plaintiffs appealed from a final decree dismissing the bill.

The evidence, which is reported, relates to the physical condition of the building, its value, the examination of it by building inspectors and the various steps taken by the building commissioner that culminated in its removal. The trial judge found that on May 7, 1929, a building inspector, assigned by the building commissioner, inspected the building and thereafter made several other inspections prior to September 18, 1929. On that day he made a report to the building commissioner which stated, among other things, that the building was "unsafe and dangerous." The following day the commissioner caused notice to be given that the building "being unsafe so as to endanger life and a common nuisance, you are hereby notified forthwith to remove the cause of danger and abate the nuisance." The notice contained specifications as to the alleged dangerous conditions. On January 15, 1930, an inspector reported that he had inspected the premises and that nothing had been done. On January 20, 1930, the city of Boston brought a bill in equity admittedly under St. 1907, c. 550, as amended, against the then trustees who held legal title to the building. Thereafter, as more fully appears hereinafter, the trustees removed the three upper stories of the building. The bill in equity was never heard on the merits and was dismissed on June 8, 1936, under Rule 85 of the Superior Court (1932). In the latter part of April, 1930, a building inspector examined the building and on May 1, 1930, reported to the building commissioner that the building was "dilapidated and a fire menace and is unsafe and dangerous." On May 5, 1930, the building commissioner caused another notice to be given to the legal owners which was of the same tenor as the notice given on September 19, 1929, except that it contained more details as to the alleged condition of the building and described it as dilapidated and a fire menace, and unsafe and dangerous so as to endanger life. On the same day the building commissioner, in writing, asked the mayor of Boston, in accordance with the provisions of St. 1907, c. 550, Sections 4 and 5 as amended, for his permission to enter the premises and remove the building forthwith. The mayor gave his approval in writing on May 7, 1930. On May 8, 1930, the commissioner notified the owners that the mayor had authorized the removal of the building and that, if they desired the material in it, they must notify the building department at once. Thereafter the building was completely demolished. The building inspectors and building commissioner acted in good faith in making their respective findings, determinations and orders. The trial judge ruled that the building commissioner was a public officer whose powers and duties were prescribed by statute and that the defendant was not liable for his act in causing the building to be demolished. If this ruling is right, it is unnecessary for us to consider the argument of the plaintiffs that the case should have been retained for assessment of damages. No question is raised by the plaintiffs as to the compliance by the building commissioner with St. 1907, c. 550, Sections 4 and 5, as amended by St. 1923, c. 462, Sections 2 and 3.

We think that the ruling was right and that the bill was dismissed properly.

St. 1907, c.

550, Section 1, as amended by St. 1923, c. 462, provides that there shall be a building department in the city of Boston which shall be under the charge of the building commissioner, who shall have had at least five years' experience as an architect, a builder, or a civil engineer, and shall be appointed by the mayor for a term of five years. The commissioner's salary is fixed by the city council with the approval of the mayor and he has the power of appoinment, with the approval of the mayor, of such numbers of inspectors, employees and assistants as the city council shall determine. He names his deputy. He is required to have kept a record of the business of his department and to submit to the mayor a yearly report of such business. He grants all permits for the construction, alteration, removal or tearing down of buildings or structures and for plumbing, gas fitting, and the setting and maintenance of steam boilers and furnaces. He may require that plans and specifications for construction or alteration of structures or buildings be submitted to him. He may revoke permits under certain conditions and, if he finds that work is being done without a permit or that the terms of a permit are being violated, he may, after notice to the owner, order the whole or any part of such work stopped, and such work shall not be resumed until he has issued a permit or given his written approval for its continuance. Chapter 550 consists of one hundred thirty-four sections, most of which relate in careful detail to the requirements for the construction and alteration of buildings. Although the commissioner is invested with some discretion as to the quality of materials which may be used and also as to a few other matters, yet, in the main, the statute defines his duties with certainty, for example, by forbidding him to dispense with any of the provisions of the thirty-three sections that relate to tenement houses. Section 4, as amended, requires the commissioner, or one of his inspectors, to inspect every building or other structure "which he has reason to believe . . . exists in violation of any provision of this act, or is unsafe or dangerous to life, limb, or adjoining buildings." Notice to persons in interest of any such condition, if found, is required. Section 5, as amended, provides, among other things, that the person notified shall ". . . comply with the provision of this act which is being violated, or shall secure or remove said building . . . If the public safety so requires, the commissioner, with the approval of the mayor, may at once enter the building or other structure which he finds unsafe or dangerous, . . . with such assistance as he may require, and secure or remove the same . . . ." Section 6 provides for a board of appeal to which a person who has been refused a permit or has been ordered by the commissioner "to incur any expense" (Section 7) may appeal within specified times. This board after notice and hearing shall affirm, annul, or modify the refusal or order of the commissioner. Section 129 provides, among other things, that any person, the value of whose property may be affected by any decision of the board of appeal, may have the action of the board reviewed by a...