
    The People of the State of New York ex rel. The Corn Hill Realty Company, Relator, v. William L. Stroebel, as Superintendent of Buildings of the City of Utica, New York, Respondent.
    Fourth Department,
    April 30, 1913.
    Municipal corporation — ordinance regulating construction of garage - — constitutional law — refusal of permit by superintendent of buildings — certiorari.
    An ordinance preventing the erection of a public garage in a residence district is constitutional and valid.
    Upon the review, under a writ of certiorari, of the decision of a superintendent of buildings, refusing to issue a permit to erect a building upon the ground that it was the intention and purpose of the relator to conduct, maintain and use the same as a public garage in violation of an ordinance, evidence examined, and held, that the determination by the superintendent of buildings should be confirmed.
    The superintendent of buildings was not obliged to wait until after the building was erected before determining whether or not it was to be maintained as a public • garage.
    Hearing- pursuant to section 2138 of the Code of Civil Procedure upon the return to a writ of certiorari issued by order of the Supreme Court at a Special Term held in the city of Utica, N. Y., on the 8th day of November, 1912, upon the petition of the relator to review the decision of the respondent as superintendant of buildings in and for said city refusing to issue á permit to the relator to erect a building upon its lands in said, city located within the fire limits, so called. The refusal of the superintendent to issue the permit asked for by the relator was not based upon the fact that such building proposed to be erected did not comply with the building code and fire limits ordinance but upon the ground that when such building was erected it was the intention and purpose of the relator to conduct, maintain and use the same as a public garage in violation of the public garage ordinance of said city.
    
      G. C. Morehouse, for the relator.
    
      Seward A. Miller and Charles T. Titus, for the respondent.
   McLennan, P. J.:

The two ordinances referred to must he considered together and their, provisions harmonized; otherwise the superintendent of buildings of the city of Htica cannot determine in what manner the important duties imposed upon him may be discharged. The building code and fire limits ordinance of the city of Utica are practically the same as exist in all other second class cities of the State. Their provisions are, in effect, that no owner of property, his lessee or agent, shall erect any building within the fire limits of such city without having obtained a permit so to do and satisfying the superintendent of buildings that such building proposed to be erected will conform in all respects to the requirements of the building code, which means that such building shall be erected so as not to be a menace to the adjoining property, but shall be substantial and fireproof in its construction. Another provision of the ordinances is to the effect that a building can be constructed for a public garage upon property of the owner subject to certain conditions and restrictions.

We think that the facts presented to the superintendent of buildings as to the building to be erected by the relator were such as called upon him to determine whether the purpose ánd use of such building was a public garage and that he had a right to determine that question as he did in this case. The relator concededly was not fair in submitting its proof to the superintendent. It did not say in words that it was not going to maintain a public garage in violation of the terms of the ordinance, but, on the contrary, the plans submitted to the superintendent and the vague allegations submitted in the petition of the relator were quite insufficient, as it seems to me, to lead the superintendent to conclude that the purpose of such building was that it was to be used as a public garage.

I think that the ordinance preventing such public garage in a residence district is constitutional and valid, and that the only question presented in this case is whether or not the ' respondent under all the facts and circumstances should have been compelled to wait until after the building was erected to determine whether there was a public garage to be maintained, conducted and used in such building.

I think that upon all the evidence the superintendent of buildings was justified in concluding that it was the intention and purpose of the relator to erect a building which was to be used, maintained and conducted in violation of the ordinance prohibiting a public garage from being maintained, conducted and used under the circumstances in this case.

It appears and is uncontradicted that the adjacent property owners understood that there was to be a public garage maintained by the relator, and their protest appears in the record'. It seems to me absurd to say that under the "facts in this case it can be held that the superintendent of public buildings did not have sufficient evidence to enable him to say that the purpose of the relator was to erect, maintain and conduct a public garage in violation of the ordinance. I think that the ordinance is a valid one' and that it ought not to be held that such an ordinance is in violation of the Constitution.

I recommend that the determination made by the superintendent of buildings be confirmed and the writ dismissed, with fifty dollars costs and disbursements.

All concurred.

Determination of superintendent of buildings confirmed and writ dismissed, with fifty dollars costs and disbursements.  