
    Solomon Brill, Appellant, v. Rudolph P. Miller, Superintendent of Buildings, Borough of Manhattan, City of New York, and Others, Respondents.
    First Department,
    November 18, 1910.
    Municipal corporations — enlargement of theater in the city of New York—failure to comply with Building Code—parties — taxpayers may enjoin approval of illegal plans.
    Although section 109a of the Building Code of the city of New York, regulating the erection of buildings for theatrical purposes, provides that the section shall not apply to theaters erected before the Code went into effect, the superintendent of buildings may not approve plans whereby- a theater erected before the enactment of the Code is enlarged by the erection of an adjoining building so that the two together constitute a new theater, unless the plans comply with the requirements of the Code.
    A taxpayer may maintain an action to enjoin the superintendent of public buildings of the city of New York from approving such plans, and it is immaterial whether he shows any special damage, or is influenced by personal or selfish motives.
    A taxpayer may maintain an action under section 51 of the General Municipal Law to enjoin either an illegal act by municipal officers, or a waste of or injury to public property or funds. To justify an injunction it is not necessary that both illegal actions and waste or injury are threatened. Either is sufficient. Laughliu, J., dissented, with opinion.
    Appeal by the plaintiff, Solomon Brill, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of August, 1910, denying the plaintiff’s motion for an injunction pendente lite and vacating an injunction heretofore granted.
    
      A. S. Gilbert, for the appellant.
    
      John P. O’Brien, for the respondent Miller.
    
      Selden Bacon, for the respondents Scliinasi and Automatic Vaudeville Company.
   J.:

This is a taxpayer’s action for an injunction to restrain the defendant Miller, superintendent of buildings of the borough of Manhattan, from approving plans for the erection of a building now said to be used as a theater. The questions involved call for a consideration of sections 109 and 109a of the Building Code, which Code went into effect in 1899, and superseded all earlier building laws relating to the city of New York. At the time the Building Code went into effect, and when it was amended in 1904 and 1906, there had been erected and was in use on the lots known as Nos. 134 and 136 East Fourteenth street, a building used in part as a place of amusement, and in part as a hotel, restaurant and barroom. The building extended southwardly towards Thirteenth street about 116 feet, and at its southerly end was a platform or stage, on which dancing and singing performances were given, although the usual stage appurtenances, such as shifting scenery, drops, dressing rooms, and the like, do not seem to have been present. This building was separated by a solid wall from dwelling or tenement houses fronting on Thirteenth street, to which street there was also an exit by means of an alleyway. The plans which the superintendent of buildings expresses his intention of approving, unless restrained, contemplate the removing of the wall now separating the Thirteenth street and the Fourteenth street buildings, the demolition of the houses now fronting on Thirteenth street, and the erection upon the Thirteenth street site of a new building to be connected with and used in conjunction with the present Fourteenth street building, so that the old Fourteenth street building and the new Thirteenth street building will together constitute a single building to be used as a theater. The stage, dressing rooms, etc., will be in the new part of this building, and the auditorium will be partly in the old and partly in the new. Section 109 of the Building Code contains detailed and stringent provisions as to the manner in which theaters must be constructed in New York city, all of which are designed to afford 'protection to the public who attend them.

It is conceded that the building intended to be produced by the combination of the old Fourteenth street building and the new Thirteenth street building will not comply with the law. The superintendent of buildings undertakes to justify his proposed action by the following provisions of the Building Code: “ Sec. 109. Theatres and Places of Public Amusement.— Every theatre or opera house or other building intended to be used. for theatrical or operatic purposes, or for public entertainment of any kind, hereafter erected for the accommodation of more than three hundred persons, shall be built to comply with the requirements of this section. No building which, at the time of the passage of this Code, is not in actual use for theatrical or operatic purposes, and no building hereafter erected not in conformity with the requirements of this section, shall be used for theatrical or operatic purposes, or for public entertainments of any kind, until the same shall have been made to.conform to the requirements of this section. * * *

“ Sec. 109a. The provisions of the foregoing section shall not be construed to mean or made to apply to any theatre, opera house or building intended to be used for theatrical or operatic purposes, now erected or for which plans have heretofore been approved by the Superintendent of Buildings.”

His contention is that the Fourteenth street building was, when the Building Code went into effect, a “ theatre, opera house or building intended to be used for theatrical or operatic purposes,” hence it need not comply with the stringent provisions of section 109, but might continue to be used as it had been; that the erection of the new structure audits combination with the old one was a mere alteration of the older building, and that the practically new theater to be formed by the combination of the old and the new buildings must be considered a “ theatre,” etc., actually in use in 1899. This contention is unreasonable and untenable. Passing the very doubtful question whether the Fourteenth street building ever was a theater or opera house, or anything more than a saloon to which patrons were attracted by singing and dancing, it seems to be clear to the point of demonstration that if the plans in question are carried out the old building will completely lose its identity, and the result will be the erection of a new and much larger theater constructed in defiance of existing laws. This will amount to much more than a mere alteration,” which is generally understood as meaning a change or changes within the superficial limits of an existing structure, or a change oi form or state which does not affect the identity of the subject. (Century Dict.; Black River Imp. Co. v. Hollway, 87 Wis. 590 ; Davenport v. Magoon, 13 Ore. 7 ; Warren R. R. Co. v. State, 29 N. J. L. 353.) The result of carrying out the plans as proposed would be that .a building wholly unauthorized by the Building Code would be erected and used as a theater. Such a building would be unlawful, and if the superintendeiit of buildings approves the plans and permits the structure to be erected, he will unquestionably violate his duty and thus perform an “ illegal official act,” for that cannot be legal which is forbidden by law.” (Peck v. Belknap, 130 N. Y. 394, 399.) Having arrived without hesitation at the conclusion that the approval of the plans by the superintendent of buildings would be unlawful the more difficult question arises whether or not it is such an illegal official act ” as may be enjoined at the suit of a taxpayer. The statute under which the action is brought now constitutes section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29), being derived from chapter 531 of the Laws of 1881 as amended by chapter 673 of the Laws of 1887 and chapter 301 of the Laws of 1892. It authorizes an action by any taxpayer, qualified as prescribed by the statute, against any officer, agent, commissioner or other person acting, or who has acted, for and on behalf of any municipal corporation to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds qr estate ” of said municipality. It is not questioned that plaintiff brings himself within the terms of the statute as a taxpayer qualified to sue, and it is, therefore, immaterial whether or not he shows special damage or whether or not he is influenced to bring the action by some personal or selfish interest.

The statute provides both for prevention and for reparation, and as pointed out in Tompkins v. Pallas (47 Misc. Rep. 309) it authorizes an action by a taxpayer either (1) to prevent an illegal act or (2) to prevent waste or injury to the public property or funds. To justify an injunction it is not necessary that both illegality and waste or injury are threatened. Either is sufficient. Thus, in Ziegler v. Chapin (126 N. Y. 342), which was an action to annul a contract for the purchase by the city of Brooklyn of the property and franchises of a water company, no fraud or collusion was charged, and the court expressly found that the complaint contained no sufficient allegation of waste, yet an injunction was upheld upon the sole and specific ground that the city officers had no power under the law to make such a contract, and, therefore, the attempt to do so was an illegal official action. The mere illegality, therefore, of the proposed action by the superintendent of buildings is sufficient to justify the injunction, if his threatened act is one of those which the statute was designed to reach. It is strongly urged upon us that the only illegal official acts which may be thus enjoined are those which threaten or may produce waste or injury of the public property or funds, and that the approval of the plans, even if unauthorized and illegal, does not threaten such waste or injury. The original Taxpayers’ Act (Laws of 1872, chap. 161) contained no,provision for an injunction to prevent a threatened unlawful official act merely because it was unlawful, nor does section 1925 of the Code of Civil Procedure. The purpose of inserting such a provision in the act under which this action is brought was to place a taxpayer in a position where he can, before the intervention of vested rights and the equities of third parties, challenge the legality of the acts of public officials. The statute assumes that any illegal official act is or may be in jurious to the corporation when done by its servant, and allows him to be restrained simply because of its illegality. (Warrin v. Baldwin, 105 N. Y. 534; Queens County Water Co. v. Monroe, 83 App. Div. 105.) It was explained in Rogers v. O'Brien (153 N. Y. 357) that it could not have been the intention of the Legislature to draw into preventive jurisdiction, in equity, at the instance of any taxpayer every proposed illegal official act, and it was said that to justify an in junction it should appear that the proposed act not only was illegal, but involved a waste .of public property, or a violation of public rights, or any injury to the interests of taxpayers, as such.” This reasonable limitation upon the scope of the act does not, however, require that the threatened public injury must necessarily be measurable in dollars and cents. There may well be public interests which a taxpayer is interested to conserve, which relate to the general public welfare and which ought to be protected, and which should, in the first instance, be conserved by some public officer. In such a case, if the officer, who should protect the public interests, refuses or neglects to do so the statute authorizes the intervention of a taxpayer. In Peck v. Belknap (supra) the purpose of the action was to compel compliance with the Civil Service Law. In Tompkins v. Pallas (supra) no pecuniary loss to the municipality was threatened, and the sole purpose of the action was to prevent an unlawful use of a public park. It is a matter of common knowledge that the stringent regulations of the Building Code respecting the construction of theaters were adopted for the protection of the public, and to prevent, if possible, a recurrence of the distressing disasters which have resulted from the destruction of such buildings. In our opinion the public has such a direct interest in the strict observance of the Code upon that subject that a taxpayer may intervene under the statute to prevent a violation of the law, thus doing what the officers of the municipality ought themselves to do. It would be unjust both to the public and to the owner of the property to permit the plans to be approved and the building erected. To the public, because one of its protective laws would be evaded and set at naught. To the property owner, because his building would be an illegal structure and its use might be prevented at any time by some successor to the present superintendent. The result is that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to continue the temporary injunction pendente lite' granted, with ten dollars costs.

Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

It is quite clear that this action is not authorized by section 1925 of the Code of Civil Procedure, for it is manifest that the approval of the plans of the building to be erected upon private premises will not in any manner effect a waste of public funds.- ¡Neither property nor funds of the municipality are involved in or can be affected by the alleged illegal official act. It is claimed, however, that the action can be maintained under section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29). That section does not, as I construe it, authorize a taxpayer’s action to restrain any threatened illegal official act regardless of whether or not the official act, if consummated, will affect property or funds of the municipal corporation. In terms it authorizes an action to enjoin “ any illegal official act,” but this provision is modified by the subsequent provisions of the same sentence, which prescribe who may bring the action, and for what purpose it may be brought. If it were intended to authorize the action to enjoin a/ny threatened, illegal official act, it is not probable that the Legislature would have con-' fined the remedy to taxpayers liable for taxes on property of the assessed- value of $1,000, but would have extended the remedy to any resident citizen. The provisions of the section material to the question now under consideration are as follows:

“All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or -corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment of the above-named amount within one year previous to the commencement of any such action.”

The majority opinion gives no force or effect to the last part of the sentence which, I think, clearly shows that the right of action is given to a taxpayer whose interest as a taxpayer will or may be affected by the alleged illegal official act. By the express terms of the statute the remedy is given to the taxpayer to prevent the waste or injury” of the property of the municipality in which as a taxpayer he is interested. I am of opinion that, as under said section 1925 of the Code of Civil Procedure an" action may only be maintained for waste of municipal funds, so under said section 51 of the General Municipal Law, in so far as it relates to illegal official acts, an action may only be maintained to enjoin an illegal official act which will or may result in an unauthorized use or illegal payment of funds of the municipality, or in an injury to or a waste of its property or funds. Questions under section 51 of the General Municipal Law and the statute of which it is a re-enactment have usually arisen with respect to a threatened illegal application of municipal funds, and the courts have not deemed it necessary to consider the question which is now presented for decision. It is to be borne in mind that originally courts of equity had no jurisdiction over such matters and authority' for the action must be found in the statutory provisions which, of course, being' remedial statutes are to be construed liberally to. accomplish the purpose intended by the Legislature. (Osterhoudt v. Rigney, 98 N. Y. 222; Queens County Water Co. v. Monroe, 83 App. Div. 105.)

If this action can be maintained then the administration of the municipal law, instead of being left in the first instance to the officials clothed with authority to act, may be taken over by the courts at the instance of any taxpayer. It will only be necessary to allege, in addition to the property qualifications giving a taxpayer a standing, that an application has been made to some municipal body, board or officer for some illegal permit, act or action and that the body, board or officer threatens to act favorably thereon, and then the threatened action will be enjoined until the court passes upon the legality thereof. A threat to issue a peddler’s license, or a license to keep a dog or to carry a revolver, or a license for a parade, or a 'threat to discharge a subordinate officer or employee without authority, or to do other innumerable things that could in no manner affect property or funds of the corporation might give rise to a taxpayer’s suit if the statute is to be construed literally without giving effect to the provision showing the purpose for which the action is authorized. Public officials would thus be unduly interfered with in the performance of their duties and courts would be unduly burdened with litigation. No harm can come to the property or funds of the municipal corporation by the threatened action of the superintendent of buildings with respect to approving the plans in question. If he should approve the plans and if that would be illegal then his act would be a nullity, and it would not authorize the erection or alteration of the building in accordance with the plans, and. such erection or alteration may be enjoined at the instance of an abutting property owner, or of the owner of property in the neighborhood, whose property rights will or may be affected by the illegal structure. Moreover, doubtless a writ of mandamus would issue to some official whose duty it is to prevent the erection of illegal structures or to prevent and abate nuisances to compel him to perform his duty in case he should fail to perform it. There is, however, I think, on the facts presented, no ground for a taxpayer’s action. If funds were to be disbursed, or property were to be purchased or disposed of illegally, doubtless it might, be presumed on the illegality of the threatened action that the municipal funds or property would be injuriously affected; but the act here threatened, if conceded to be illegal, gives rise to no such presumption. Therefore, in my opinion, the court properly denied the application for a temporary injunction, and vacated the injunction issued restraining the defendant from approving the plan pending the determination of the motion for a temporary injunction.

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