
    The People of the State of New York ex rel. Bartholomew Dunn, as Executor, etc., of Thomas J. Dunn, Deceased, Respondent, v. Herman A. Metz, as Comptroller, and Patrick H. Quinn, as Auditor of Accounts of the City of New York, Appellants.
    First Department,
    November 5, 1906.
    Municipal corporation—Building Code of the city of New York — debris from collapsed building— alternative writ of mandamus—mandamus not proper remedy to compel audit of unliquidated claim against city.
    The provision of the Building Code of the city of New York permitting the removal of the debris from a collapsed building , to search for the dead and injured does not authorize the building department to store and guard the debris at the expense of the city. The duty to- protect such property is on the owner.
    When on an application for a peremptory writ of mandamus it appears that questions of fact are involved, the peremptory writ cannot issue; the relator is only entitléd to an alternative writ to try the issues.
    A contractor who has stored debris removed from a collapsed building, and does ' not claim under an express contract,. cannot compel the audit of his claim against, the city by mandamus, but should be, remitted to an action at law.
    Appeal by the defendants, Herman A. Metz and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of-April, 1906, granting a peremptory writ .of mandamus.
    
      Theodore Connoly, for the appellants.
    
      George H. D. Foster, for the respondent.
   Ingraham, J:

This proceeding was commenced on the relation of Thomas J. ■ Dunn for a peremptory writ of mandamus requiring the-auditor of accounts in the .office of the 'Comptroller of the city of Hew York to audit the account of the petitioner and directing the comptroller to pay the claim thus audited. A peremptory writ of mandamus was granted as prayed for and from tlie order granting it the defendants appeal. The petition upon which this writ was granted alleges that on March-2,1904, the Darlington- Hotel, which was in process of erection, collapsed, leaving within the debris aris-. ing therefrom a number of persons, destroying life and causing great confusion, and.creating an emergency such as is contemplated by section 157 of the Building Code of the city of Hew York; that on March 2, 1904, the relator was instructed by the department of buildings to send 200 or more men to the said Darlington Hotel to demolish, raze and remove the debris so that the fire hudother departments and the hospitals might co-operate and assist in the recovery of the bodies of the killed and injured and to save and protect the lives of the public, and to remove the actual and immediate danger of the falling of the said building or parts thereof, and the petitioner was at that time (designated by the build- . ing department or the superintendent of buildings to undertake the removal from the premises of the debris and to do the necessary-work to render said building and its parts temporarily safe, and ' that he was ordered by the superintendent of buildings to do said work, and the petitioner was further ordered to find and provide a suitable place upon which to store the iron and steel of the said hoteluntil it should be called for by the superintendent of buildings or building department, and to preserve it from being stolen, tampered with, destroyed or mutilated; all of which was directed, ordered and required by the ■ said building department or acting superintendent of buildings; that pursuant to said orders, direction and request the petitioner did cart, carry, pile and store the steel or iron floor beams, columns, girders, etc., comprising a part of the said -hotel to and at Avenue A, on lots occupying the block from Sixty-seventh to Sixty-eighth streets, comprising eight house lots which were devoted to and used solely for the purpose of storing the said iron and steel; that the petitioner did also provide, keep and maintain a watchman to preserve, protect and guard the said iron and steel, as required by the said building department or superintendent of buildings; that said iron and steel was removed, carted, stored, watched and guarded for a long period of time, viz., from March 2, 1904, to June 3, 1905, when the relator was directed by the department of buildings to deliver to Abraham Solomon the building material claimed by him as taken from the said hotel, and that pursuant to that order the relator delivered to the said Solomon the said materials. On May 3, 1905, the relator submitted to the superintendent of buildings .a bill or statement of the charges, which was:

This bill was received by the superintendent of buildings and indorsed by William EL Class, chief clerk. There was submitted a i further bill from May first to June third aggregating $702.50.

In opposition to this motion there was presented an affidavit of the district attorney, in which he stated that at no time did he order- or request the] storage of steel or other part of the structure of the Darlington Hotel and that he declined to certify to any expenditure in connection therewith.

It is a little difficult to see ivhát business the' department of buildings or the relator had with the iron and steel belonging to this hotel. It was not an obstruction in the street or highway, nor was it property of the city, and neither the health nor safety of the city required that the city of Hew York should ^tore and-care for it for fifteen months. Ho emergency was created so far as .storing this steel was concerned which justified the department of buildings in incurring an expense of upwards of $8,000. It is also a little difficult to see upon what principle the city should be put to an expense of upwards of $3,000 for hiring watchmen to guard these iron and steel beams. Limagine from their character that they were in no immediate danger of being stolen and it was the' duty of the owners to-protect them and not the'city. The whole charge is unreasonable and unauthorized, and certainly should not be allowed unless there is some statute which imposes a liability upon the city for the costs of caring for' their material. The Building Code was enacted by the municipal assembly under the provisions of section 647 of the charter (Laws of 1897, chap. 378), and was continued in force by section 407 of the charter (Laws of 1901, chap). 466). Assuming that this Code has the effect of a statute, I do not think that the superintendent of buildings has any power to make such a contract as that made by him with the relator, or tliajfc a charge under suclii a contract was an obligation of the city of Hew York. . The only provision which applies to such a case is as follows ■: “ In case of the falling of any building or part thereof in the city of Hew York, where persons are known or believed to be buried under the ruins thereof, it shall be the duty of the fire departme'nt to cause an examination of the premises to be made for the recovery of the bodies of the killed and injured. Whenever in making such examination it shall .be necessary to remove from the premises any debris, it shall be the duty of the commissioners of the department of docks, of the department of parks, of the department of highways, and of the department of street cleaning, when called irpon by the department of buildings to co-operate to pirovide a suitable and convenient dumping place for the depmsit of such debris. In case there shall be, in the opinion of ■ the department of buildings, actual and immediate danger of the falling of any building or part thereof so as to endanger life or property, said department shall cause the necessary work to be done to render said building or part thereof temporarily safe until the proper próceedings can be taken, as in the case of an unsafe building, as provided for in this Code. * * * For the aforesaid purposes, the said fire department or the department of buildings, as the case may be, shall employ such laborers and materials as may be necessary to perform said work as speedily as possible.” (Building Code, § 157.) There is certainly no express power given to the department of buildings to store for the owner of the building any property, or 'make a contract for the storage of any materials taken from such a cqllapsed building. The only authority for the department, to employ laborers is that contained in the last clause of the section which authorizes the fire department or. the department of buildings to employ “such laborers and materials as may be necessary to perform said work as speedily 'as possible.” If it became necessary to remove these beams from the premises it was the duty of other city departments to provide a suitable and convenient dumping place. It does not appear that these departments were called on or acted in the matter. Here were certain iron beams the property of the owner of this building that had to be temporarily removed for the recovery of-the bodies'of those buried under the wreck. After the recovery of such bodies there was no necessity for storing these beams on the property of this petitioner or of the city. They could have been returned to the property or delivered to the owner, but there is nothing in this. Building Code which contemplates the storage of property removed from such a collapsed building. If, however, there was any basis at all for the charge, a peremptory writ of mandamus should not have been allowed. The utmost that the relator could have demanded was an alternative writ, when the questions of fact could have been properly disposed of. I. do not think, however, that mandamus was -the proper remedy. There was involved in this claim a charge for the value of the use of those lots and for the services of watchmen. The city should not' have been required to pay the amount of the charge without evidence that it was reasonable and that the rental value of the lots was as claimed. For each of these lots the relator seeks to obtain the sum of fifty dollars per month. It may be that such charge is reasonable, but there is no alle.gation in the petition that it was or that fifty dollars per month was the rental value of the property. Without some evidence of that kind before the court certainly a peremptory writ ivas not justified. The proper remedy was to sue the city and recover in an action at law. Here the amount was not based .upon any specific contract. The reasonableness of employing three watchmen to prevent large iron beams from disappearing is certainly open to question and, as before stated, the value of the use and occupation of these lots is not at all established. A different question presented is where the amount of the claims is liquidated, the only question being a question óf law as to whether or not the city was responsible,.as under a specific contract a specific amount' is due, but where the right of the relator to recover and the amount of his recovery, if the city is liable at all, depend upon evidence the court should hot upon- an application for a mandamus determine the questions, but should leave the relator to his action at law.

I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a mandamus denied, with ten dollars costs.

Laughlin, Clarke and Scott, JJ., concurred.

O’Brien, P. J. (concurring):

I concur in result on the ground that mandamus is not the proper remedy.

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