
    The City of New York, Respondent, v. Conrad Alheidt, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1915.)
    Municipal corporations — building regulations — vent pipes — duty to extend.
    Under section 50 of the plumbing rules and regulations of the Building Code of the city of New York, which provides that “ When a building exceeds in height that of an adjoining building * * * the owner of the higher building shall defray the expense of extending * * * vent lines above the roof of the higher building or shall himself make such alterations,” the duty is imposed upon said owner, in ease he violates said regulation, of extending the pipe above his own roof.
    Where a building ten or twelve stories higher than the building of defendant previously erected on an adjoining lot contains windows within twelve feet of the vent pipe of defendant’s building, his failure to extend such vent pipe above the top of said windows does not render him liable to a penalty for a violation of the regulations of said Building Code.
    The word “ adjoining ” in said regulation is intended to be used in its strict sense and not as equivalent to “ adjacent.”
    Appeal from a judgment of the Municipal Court, city of New York, borough of Manhattan, fifth district, entered in favor of the plaintiff after a trial by the court.
    Louis Wendell, Jr. (Robert J. Robeson, of counsel), for appellant.
    Frank L. Polk, corporation counsel (John P. O’Brien and John P. Morris, of counsel), for respondent.
   Page, J.

This is an action to recover a penalty of $250- for violation of a regulation adopted by the bureau of buildings under authority of section 141 of the Building Code. The section of the plumbing rules and regulations which it is claimed the defendant has violated is as follows: Section 50. “All pipes issuing from extension or elsewhere, which would otherwise open within 20 feet of the window of any building, must be extended above the top of any window located within such distance. When a building exceeds in height that of an adjoining building, and windows or openings are cut in the wall on the lot line within 20 feet of the roof terminal of any soil, waste or vent line now in place or subsequently installed in the lower building, the owner of the higher building shall defray the expense of extending such soil, waste or vent lines above the roof of the higher building or shall himself make such alteration.” The defendant owns premises known as Nos. 702 and 704 Washington street, in the city of New York. On the adjoining lot is a building which was built subsequently to the erection of the defendant’s building, and is ten or twelve stories higher. The higher building contains windows which are within twelve feet of the vent pipe of the defendant’s building. It is for a failure to extend the said vent pipé above the top of the said windows that the defendant has been adjudged liable for a penalty in the sum of $250' pursuant to the regulation above quoted.

The regulation expressly states that the owner of the higher buildings shall defray the expense of extending said * * * vent lines above the roof of the higher building or shall himself make such alteration.” I am of the opinion that the duty is thus imposed upon the owner of the higher building who has caused the violation of extending* the pipe above his own roof, and the liability is primarily upon him foi failure to comply with the regulation. It might well be that if the owner of the lower building should refuse to allow the alteration upon his premises to be made he would be liable under the terms of the ordinance, but in the case, at bar there is no evidence of such refusal. The record also contains some evidence, though it is unsatisfactory and conflicting, that the two buildings under consideration are not adjoining buildings but are separated from one another by a space of approximately four feet. If such be the case it would seem that the provisions of the regulation relied upon would not apply since they clearly and expressly relate to adjoining buildings. That the word adjoining ” is intended to be used in its strict sense and not as equivalent to adjacent ” appears from the clause in the ordinance ‘ ‘ and windows or openings are cut in the wall on the lot line.”

The judgment appealed from should be reversed and a new trial granted, with costs to.the appellant to abide the event.

Guy and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  