
    In the Matter of the Application of Marx Hartman, Respondent, for a Peremptory Writ of Mandamus against Peter J. Collins, as Superintendent of the Bureau of Buildings of the City of New York for the Borough of Brooklyn, Appellant.
    
      Superintendent of public buildings in New York city—mandamus not issued requiring Ms approval of plans, which are imperfect, subject to Ms right to make changes therein.
    
    On an application for a writ of mandamus requiring the superintendent of buildings in the city of New York to approve amended plans, rejected by him, for the construction of a building, it is improper for the court to grant a peremptory writ of mandamus compelling such approval “without prejudice to the superintendent of public buildings, pointing out specifically any lawful requirements in respect to stairways, galleries or otherwise, and requiring them to be complied with.”
    Mandamus will not lie to compel action by the building department in advance of the preparation and adoption of proper plans, but only to compel action when plans affording no legitimate ground of objection have been arbitrarily or unreasonably condemned, /
    Appeal by Peter J. Collins, as superintendent of the bureau of buildings of the city of New York for the borough of Brooklyn, 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 6th day of March, 1905, granting the petitioner’s application for a peremptory writ of mandamus compelling him to approve a proposed amendment to a plan for the construction of a building in said borough.
    
      James D. Bell [John E. Walker and John J. Delany with him on the brief], for the appellant.
    
      George W: Martin, for the respondent.
   Hirschberg, P. J.:

In the month of October, 1901, the petitioner submitted plans for the erection of a building in Brooklyn which were duly approved and a permit was issued. The plans provided for a three-story building to be used for bowling-alley purposes, the building to be eighty-five feet.by thirty-three feet in length and breadth, and forty-four feet in height. They provided for an interior stairway leading from floor to floor, four feet in width, and for an exterior iron fire escape, three feet in width. In the month of February, 1905, the petitioner applied for permission to amend the plans by providing for the construction of a gallery on the inside of the third floor and for the use of that floor for banqueting or restaurant purposes instead . of for bowling alleys, to accommodate not more than 259 people. The additional means of egress proposed was an additional exterior iron fire escape three feet in width. The commissioner of buildings regarded the accommodation provided for egress as inadequate to the uses of the changed conditions proposed, and refused to approve the amendment and to issue a permit for the change.

While the order appealed from imperatively requires the superintendent of buildings to accept the proposed amendment and to issue a permit thereon, it contains in addition this qualification, viz.: “ This application is granted without prejudice to the Superintendent of Public Buildings, pointing out specifically any lawful requirements in respect to stairways, galleries or otherwise, and requiring them to be complied with.” In other words, the order requires the issuance of a peremptory writ of mandamus compelling the superintendent to approve the amended plan, but without prejudice to his right to make, and to compel compliance with, whatever lawful changes he may see fit to order.

Our attention is called to no authority for the granting of the order, and reason suggests none. Section 108 of the Building Code of the city of New York provides that “in all buildings of a public character, such 'as hotels, churches, theatres, restaurants, railroad depots, public halls, and other buildings used or intended to be used. for purposes of jfublic assembly, amusement or instruction, * * * the halls, doors, stairways, seats, passageways and aisles * * shall be arranged as the Department of Buildings shall direct, to facilitate egress in cases of fire-and accident, and to afford the requisite and proper accommodation for the public protection in such cases.” . (Thomson’s Anno. Greater N. Y. Charter, 997, 998.) The order, taken as a whole, indicates that the plan proposed by the petitioner is regarded by the learned court at Special Term as inadequate, and that the discretion vested in the superintendent of buildings has been wisely exercised in its rejection. In such circumstances the application for the writ should have been denied. The office of a mandamus is not. to compel action by the building department in advance of the preparation and adoption of proper plans, but only to compel action when plans affording no legitimate ground of objection have been arbitrarily or unreasonably condemned.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Bartlett,, Woodward, Jenics and Miller, JJ., concurred.

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