
    The City of New York, Respondent, v. A. T. Stewart Realty Company, Appellant.
    First Department,
    December, 1905.
    City óf New York—fireproof construction required by Building Code of said city not applicable to trade fixtures..
    The Building Code (§ 105) of the city of .New York, Which provides that in buildings of a certain height "Thé.inSide window frames '* * * and other interior finish may be of wood-covered with metal or of wood treated by some process approved by the board of buildings' to render the same fireproof,’.’ applies only to interior finish which is part of the permanent structure. It has no application to ordinary trade fixtures such as dwarf partitions, shelves, cases, .counters, etc., and confers no authority to restrain the use" of such, trade fixtures constructed of wood.
    ' Appeal by the defendant,, the A. T. Stewart Realty Company, from an order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 6th day of November, 1905, restraining and-' enjoining the defendant, its. contractors, servants, agents and employees “ from maintaining, allowing or .suffering to exist ” in the . building described in " the % complaint any dwarf partitions, shelves, platforms,- cases and counters constructédrof wood that were hot coveréd with metal of had. not been treated by some process. .approved by the Superintendent of Buildings to render the same fireproof, and directing the removal of those now in said building.
    
      
      Job E. Hedges, for the appellant,
    
      Theodore Connoly, for the respondent.
   Laughlin, J.:

The action is brought to restrain alleged violations of the Building Code. The defendant has nearly finished the construction.of a building 217 feet and 6 inches in height, consisting of fourteen stories, covering the entire block bounded by Broadway, Fourth avenue, Eighth and Ninth streets. It is to be used by the firm of John Wanamaker for a retail department store business. Following close * on the heels of the construction work, it appears that the. building is being fitted up for the purposes of' said retail business. It does not appear whether there is a lease, or- if so, what are its terms. Nor does it appear whether the defendant is doing any of the work incident to putting in the trade fixtures or contributing thereto. It does appear, however, that the firm of John Wanamaker has already expended upwards' of $100,000 in fitting the building up with the trade fixtures of which complaint is made. The provisions of section 1-05 of the Building Code defining a fireproof building and prescribing the material and method of construction are as follows:

§ 105. 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-five feet, excepting all buildings for which specifications and plans have been heretofore submitted to and approved by the department of buildings, arid every other building the height of which exceeds seventy-five feet, except as herein otherwise provided, shall be built fireproof; that is to say, thejr shall be constructed with walls of brick, stone, Portland cement concrete, iron or steel, in which wood beams or lintels shall not be placed, and in which the floors and roofs shall be of materials provided for in section one hundred and six of this Code. The stairs and staircase landings shall be built entirely of brick, stone, Portland cement concrete, iron or steel. No woodwork or other inflammable material shall be used in any of the partitions, furrings, or ceilings in any such fireproof buildings, excepting, however, that when the height of the building does not exceed twelve stories nor more than one hundred and fifty feet, the doors and windows and their, frames, the trims, the casings, the interior finish when filled solid at the back with fireproof material, and the floor hoards and sleepers directly thereunder, may be of wood, but the space between the sleepers shall be solidly filled with fireproof materials and,extend up to the underside of the floor hoards.

“ When the height of a fireproof building exceeds twelve stories, or more than one hundred and fifty feet, the floor surfaces shall be of stone, cement, rock asphalt, tiling or -similar incombustible material, or the sleepers and floors may be of wood treated by some process approved by the board of buildings to render the" same fireproof. All outside window frames and sash shall he of metal, or of wood covered 'with metal. The inside window - frames and sash, doors, trim and other interior finish may be of wood covered with metal, or of wood treated by some process approved by the board of buildings to render the same fireproof.

“ All hall partitions or permanent partitions between rooms in fireproof buildings shall be built of fireproof material and shall not be started on wood sills, nor on wooden floor boards, but be built upon the fireproof construction of the floor, and extend to the fireproof beam filling above. The tops of all door and window openings in such partitions shall be at least twelve inches below the ceiling line.”

The complaint is confined. to alleged violations of this statute regulating the material and construction of “ interior finish ” other than the inside windows, window frames, sash, doors and trim. The learned counsel for the appellant contends that the dwarf partitions, shelves, platforms, cases and counters, of which complaint is made, are not part- of the-permanent .structure but are merely movable trade fixtures and do not constitute “interior finish” within the purview of the statute. We are of opinion that this section of the Building Code only applies to the permanent structure. It was neither designed to regulate the use of buildings nor temporary changes and alterations, not materially affecting the permanent outside or partitition walls, floors or ceilings, made for the purpose of conducting a particular business therein nor to prevent the use of movable trade fixtures necessary or appropriate for such business. It was evidently intended to insure. the construction of fireproof walls, ceilings, floors, and all finish, exterior and interior, forming a permanent part thereof. It is manifest that the object was to guard against the weakening of the walls, floors and ceilings by the combustibility of any part of the material or their construction. The sentence containing the words “ other interior finish ” clearly shows that they relate only to interior finish bearing the same relation to "the permanent structure as that specifically designated. The-interior finish specifically named in the same sentence forms part of the permanent structure. The operation of the words “ other interior finish ” must, therefore, be confined to interior finish in the strict sense of the words which limits them to those parts of the permanent structure known as interior finish.

The construction of which complaint is made is all store or movable trade fixtures specially designed to facilitate the conducting of the retail department store business in the building conveniently and economically. None of it was included in the plans and specifications filed and approved by the building department under which the building was constructed.

It is also alleged and contended by the respondent that section fill of the Greater New York charter (Laws of 1901, chap. 466) conferred on the superintendent of buildings authority to control the movable trade fixtures to be used in buildings; that pursuant to such authority he declined to' approve of these fixtures unless they are covered with metal or are first treated by some process approved by the board of buildings to render them fireproof; and that the injunction order can be sustained on this ground even though we decide adversely to his contention as to interior finish. That section is so long that we refrain from quoting it. It is true it does confer authority on the superintendent of buildings, subject to certain specified provisions, “ to pass upon any question relative to the mode, manner of construction or materials to be used in the erection or alteration of any building or other structure *• * * and to require that such mode, manner of construction or materials 'shall conform to the true intent and meaning of the several provisions of this chapter and of the laws and ordinances aforesaid, and the rules and regulations established by the president of the borough.” It is not essential that we should now decide whether the superintendent could, be given authority over movable trade fixtures. It is quite clear that the authority intended .to be conferred by this section of the charter mainly relates to the exercise of his judgment on questions of fact as to whether material sought' to be used is of the description and quality .required. He is not vested with authority to decide, as he has attempted to do in this case, that movable trade fixtures are part of the permanent construction of a building and must conform'to-the., requirements of law applicable thereto. If there be any statute, ordinance or regulation giving him jurisdiction.over movable trade fixtures it has not ■been brought to our attention and it is evident, that he did' not assume to act thereunder.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

O’Brien, P. J., Ingbaham, McLaughlin and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  