People ex rel. Kemp v. D'Oench
| Decision Date | 27 November 1888 |
| Citation | 111 N.Y. 359,18 N.E. 862 |
| Parties | PEOPLE ex rel. KEMP v. D'OENCH, Superintendent of Buildings. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Motion by George Kemp for a peremptory writ of mandamus to Albert F. D'Oench, superintendent of buildings in the city of New York, to pass upon the plans of an addition to an hotel intended to exceed 80 feet in height. The motion was denied at special term, whose order was affirmed at general term, and relator appeals.
Francis L. Stetson, for appellant.
William L. Findley, for respondent.
It is provided in the act (chapter 454, Laws 1885) that ‘the height of all dwelling-houses, and of all houses used or intended to be used as dwellings for more than one famity’ thereafter to be erected in the city of New York, shall not exceed 80 feet in streets and avenues exceeding 60 feet in width. We have no doubt of the competency of the legislature in the exercise of the police power under the constitution to pass such an act, and the sole question, therefore, now to be determined, is whether the act applies to hotels. We think it does not. In interpreting statutes, the words used should receive their ordinary and popular import; and according to general usage a dwelling-house is not an hotel, and an hotel is not a dwelling-house. Sometimes it may be that the word ‘dwelling-house’ should, for the purpose of giving the statute its intended effect and operation, embrace hotels. But such an unusual and extended meaning should not be given to the word unless it can be plainly seen that such was the legislative intention. Here we have no reason to suppose that the legislature intended the act should apply to hotels. As simple, private dwelling-houses are rarely, if ever, built 80 feet high, the main purpose of the act must have been to regulate the height of tenement and apartment houses, which are becoming very numerous in New York, which are usually built in the midst of dwelling-houses, and in which several families live and carry on all the operations of house-keeping. There is not the same reason for regulating the height of hotels, not usually built in the midst of dwelling-houses, which are mainly occupied by temporary adult guests, which are under the supervision of one management, and which can never become very numerous. While stores, factories, warehouses, buildings for offices, and numerous other buildings, may be erected without...
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