People ex rel. Publicity Leasing Co. v. Ludwig

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CHASE
• Citation: People ex rel. Publicity Leasing Co. v. Ludwig, 218 N.Y. 540, 113 N.E. 532 (N.Y. 1916)
• Decision Date: 11 July 1916
• Parties: THE PEOPLE OF THE STATE OF NEW YORK ex rel. PUBLICITY LEASING COMPANY, Respondent, v. ALFRED LUDWIG, as Superintendent of Buildings of the Borough of Manhattan, City of New York, et al., Appellants.

218 N.Y. 540

113 N.E. 532

PEOPLE ex rel. PUBLICITY LEASING CO.

v.LUDWIG, Superintendent of Buildings, et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus by the People, on the relation of the Publicity Leasing Company, against Alfred Ludwig, as Superintendent of Buildings, and the Mecca Realty Company, in which the O. J. Gude Company intervened by permission. From an order of the Appellate Division (172 App. Div. 71,158 N. Y. Supp. 208), reversing order of the Special Term and directing that the writ issue, defendants and intervener appeal. Affirmed.Lamar Hardy, Corporation Counsel, of New York City (Terence Farley, of New York City, of counsel), for appellant Ludwig.

Hector M. Hitchings, of New York City, for appellant O. J. Gude Co.

Jesse S. Epstein, of New York City, for appellant Mecca Realty Co.

Walter H. Bond, of New York City, for respondent.

CHASE, J.

This is a special proceeding by which a writ of peremptory mandamus is sought to compel the superintendent of buildings in the borough of Manhattan, in the city of New York, to remove a roof sign structure therein described.

[1] The material facts appearing in the record are stated in the opinion in the Appellate Division herein, and it is unnecessary to repeat them. People of the State of New York ex rel. Publicity Leasing Co. v. Ludwig, 172 App. Div. 71,158 N. Y. Supp. 208. The expenditures which the appellant Mecca Realty Company alleges that it made before and after February 19, 1914, and prior to the enactment of the ordinance of May 29, 1914, were not such as to give to it or its assignee a vested right to erect, rebuild, or alter its existing sign in violation of the ordinance under consideration. We concur in the opinion of the Appellate Division.

[2] We also repeat the language of this court in Southern Leasing Company v. Ludwig, 217 N. Y. 100, 104,111 N. E. 470, as follows:

‘If the superintendent of buildings wrongfully refuses to remove it [the roof sign structure in question], the remedy of mandamus is available to any citizen to hold him to the performance of his duty.’

[3] There is no reason for an opinion on this appeal except to say that the prohibition in the ordinance in question is directed against the height and insecurity of the structures prohibited. It does not appear in the ordinance under consideration, as in the ordinance in the Wineburgh Case (People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126, 88 N. E. 17,21 L. R. A. [N. S.] 735) that it was not enacted in the interest of public safety, or to conserve the general welfare, or that it is necessarily arbitrary and unauthorized. The ordinance relates to the structure as such. It is confined to structures of the character of those used on which to place signs. It is apparent that the danger to the public in maintaining such a structure is increased as the structure is increased in height. It is also apparent that the structures mentioned in the ordinance, whether erected on the ground or upon...