
    The City of New York, Respondent, v. Realty Associates, Appellant.
    Second Department,
    June 4, 1909.
    Municipal corporation—Hew York city—building code.— use of building as school—alterations.
    Where the owner filed an application and plans for the alteration of a building in the city of New York for an office building and storés, and the plans having been approved and the alterations made, leased two floors therein, as a school, ' but it is undisputed that at the time of filing the plans the owner had no intention to sublet any "part of the building for such use, and no alterations exeept-.the installation of desks, blackboards, etc., were made' other than those called.forby the plans-already filed, section 105 of the buildingcode of the city. of New York, providing that “Every building hereafter erected or altered to be used as a * * * school * * * shall be built fireproof,” has no application to the case and an injunction restraining the maintenance of the school pendente lite should not be granted.
    Appeal by the defendant, the Realty Associates, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the. county of Kings on the 22d day of December, 1908.
    
      T. Ellett Hodgskin [George W. Wingate and Edward M. Perry with him on the brief], for the appellant.
    
      John P. O'Brien [Theodore Connoly, Samuel J. Parmenter and Francis K. Pendleton, Corporation Counsel, with him on the brief], for the respondent.
   Miller, J.:

This is an appeal from an order granting an injunction pendente lite, restraining the defendant from maintaining or allowing to exist a school on its premises at 24-36 Flatbush avenue, in the borough of Brooklyn. The action is brought pursuant to section 42 of chapter 275 of the Laws of 1892 (Amdg. Consol. Act [Laws of 1882, chap. 410], § 506), and section 151 of the Building. Code of the city of New York, to restrain the maintainance of a school in the building in question on the ground that it was altered in violation of section 105 of the Building Code, which provides: “ Fireproof Buildings.— Every building hereafter erected-or altered, to be used as a hotel, lodging house, school, theatre, jail, police station, hospital, asylum, institution for the care or treatment of persons, the height of which exceeds thirty-six feet, six inches, excepting all buildings for which specifications and plans have been heretofore submitted .to and approved by the Department of .Buildings, and every other building the height of which exceeds seventy-five feet, except as herein otherwise provided, shall be built fireproof.” The proof is that the defendant, the owner, filed with the superintendent of buildings on March 13, 1908, an application and plans for the alteration of the building for an office building and stores. The plans were approved and the alterations were made. It was undisputed that, at the time of the filing of the plans, there was no intention on the part of :the owner or the lessee to sublet any part of the building for use as a school. Some time in Hay, . 1908, a lease of the third and fourth floors of the building was-made to Hr. Browne for the use of a school, known as Browne’s Business College. - Of course, desks, blackboards and the like school fixtures were installed, but it does not appear that any substantial changes were made in the building itself other “than as called for by the plans and specifications.

It will be noticed'that the statute is “Every building hereafter erected or altered, to be used as a . * * * school * * * shall be built fireproof.” The statute does not forbid the use of á building, not fireproof, for a school. Having in good faith made the alterations for the purposes stated in the application (the defendant’s good faith is not questioned), the statute can have no application to the case. Of course, the defendant could not evade the statute by resort to subterfuge; but, as there was no such claim made, it was error to grant the order. The statute is not to be extended to a case not fairly within its terms.

The order should be reversed and the motion to confirm referee’s report granted, with costs.

Woodward, Jenks, Gaynor and Burr, JJ., concurred..

Order reversed, with ten dollars cost's and disbursements, and motion granted, with costs.  