
    The People ex rel. George Kemp, App’lt, v. Albert F. D’Oench, Superintendent of Buildings, etc., of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Hotels—Height of—Laws of 1885, chap. 454.
    Laws of 1885, chapter 454, which provides that “the.height of all dwelling-houses and of all houses used, or inter ded to he used, as dwelling houses for more than one family,” thereafter to he erected in the city of New York, shall not exceed eighty feet in streets and avenues exceeding sixty feet in widtn, does not apply to hotels.
    2. Same—Said law constitutional.
    It was competent for the legislature, in the exercise of the police power under the constitution, to pass such an act.
    Appeal from an order of the general term of the court of common pleas of the city of New York affirming an order of a special term denying an application for a peremptory writ of mandamus. “ The relator sought to compel, by mandamus, the superintendent of buildings of New York city to approve the specifications and plans for an addition which he proposed to build to the Buckingham hotel on Fifth avenue, New York. The addition would exceed eighty feet in height. The superintendent refused to approve the specifications and plans because the proposed structure would be in contravention of Laws of 1885, chapter 454.
    
      Francis L. Stetson, for app’lt; William L. Findlay, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 1020.
    
   Earl, J.

It is provided in the act, chapter 454 of the Laws of 1885, that “the height of all dwelling houses and of all houses used, or intended to be used, as dwellings -for more than one family,” thereafter to be erected in the city of New York, shall not exceed eighty feet in streets and avenues exceeding sixty feet in width.

We have no doubt of the competency of the legislature, .in the exercise of the police power under the constitution, to pass such an act, and the sole question, therefore, now to be determined is whether the act applies to hotels. We think it does not. In interpreting statutes, the words used should receive their ordinary and popular import; and, according to general usage, a dwelling-house is not a hotel and a hotel is not a dwelling-house. Sometimes it may be .that the word “dwelling-house” should, for the purpose of giving the statute its intended effect and operation, embrace hotels. But such an unusual and extended meaning should not be given to the word, unless it can be plainly seen that .such was the legislative intention. Here we have no reason to suppose that the legislature intended the act should apply to hotels. As simple private dwelling-houses are rarely, if ever, built eighty feet high, the main purpose of the act must have been to regulate the height of tenement and apartment houses, which are becoming very numerous in New York, which are usually built in the midst of dwelling-houses, and in which several families live and carry on .all the operations of housekeeping. There is not the same reason for regulating the height of hotels, not usually built in the midst of dwelling-houses, which are mainly occupied by temporary adult guests, which are under the supervision of one management and which can never become very numerous. While stores, factories, warehouses, buildings for offices, and numerous other buildings may be erected without any restriction as to height, we can see no reason to suppose that the language used in this act was meant to embrace hotels, nearly all of which in the city of New York have, for many years, been erected of greater height than the limit prescribed in the act.

The orders of the special and general terms should, therefore, be reversed and a peremptory writ of mandamus •issued, without costs.

All concur.  