
    MATTER OF AN UNSAFE BUILDING.
    
      N. Y. Common Pleas; Special Term,
    January, 1877.
    Unsafe Building.—Notice of Survey of Building.—Report of Survey.
    Under 3 L. 1871, p. 1334, c. 635, as amended by L. 1874, p. 734, c. 547, the preliminary notice of the survey of an unsafe building served on the owner, is the foundation of the jurisdiction of the court.
    Hence, on the trial of the truth of a report of the survey, which, in addition to the defect mentioned in the notice, embraced many particulars showing the general unsafe condition of the building ; Held, that only the truth as to the defect mentioned in the notice could be tried, and that to compel repairs in other respects a new survey upon proper notice must be had.
    
      Application by the department of buildings in the city of New York, for a trial by jury of the allegations and statements in the report of survey of building southwest corner of Fulton and Nassau streets, in that city, pursuant to the act, chapter 625, Laws of 1871, sections 36, 37, and 38 (amended in other sections by chapter 547, Laws of 1874).
    The application was resisted by the owner of the premises, upon the ground that the report of survey contained allegations of matters relating to said premises, different from the allegations in the notice to him, upon which such survey was had.
    The notice issued by the department to the owner of the premises, was so issued pursuant to section 37 of said act, and notified the owner that the premises were “ Unsafe and dangerous in the following respects, to wit: In that the brick work of cornice on the northeasterly comer of said building is in a loose, broken, and dangerously unsafe condition. The bricks of' same being loosened to an extent that rendered them liable to fall at any moment, and thereby be or-become dangerous to life and limb” ; and notified him that a survey of said premises would be made by- . three competent persons, one of whom might be appointed by him, and upon the said described premises, on January 24, 1877, at eleven o’clock, A. M., and if' the said premises should again be reported unsafe or dangerous after such survey, said report would be-placed before this court on January 26, 1877, at 10.30, A. m., and a jury trial of the allegations and statements contained in said report then and there be had, to-determine whether said unsafe or dangerous building ; or premises should be repaired or secured, or taken down.
    A report of survey subscribed by the deputy superintendent of the department, by Henry Dudley, an architect appointed by the American Institute of ArcMtects (same act, § 37), and by one C. F. Hill for lessee, but not by any person for the owner, is presented to the court, in which report the premises are stated, to be “ Unsafe and dangerous in the following respects, to wit: that the wall of press room, which formerly appears to have been the wall of area, is forced out of plumb by the pressure of the arch of the same. It has been strutted from the stone piers of the front of the building, with cast-iron. The pier supporting a heavy safe on first floor has settled off badly from the wall. The timbers of the floors of sub-cellar, basement, and first floor, are generally rotted off at the ends, and in some places have broken down. The floors through<out are deflected about three inches, and the timbers ■are not of sufficient depth for the bearing. The original rear walls of stores on Fulton street have been removed on the first floor, and the upper parts supported on iron girders and columns, and the girders have deflected about two and a'half inches in the center. The plastering of the ceilings is generally loose, and large portions of it have fallen. The brick cornice at northeast corner of building is loose, and liable to fall. The wood-work of the building is generally dilapidated. The building is heavily loaded with printing-presses, and other heavy machinery, and we consider it utterly unfit for the purposes for which it is now used; also a portion of the area wall which supports arch has .fallen out” ; and it is further certified and reported in ¡said report that the “ said premises should be immediately made safe by, viz., building brick arches across the area from the wall of press-room to the piers of front of building; by repairing the portion of the wall of press-room which has fallen out; by taking out the defective beams of sub-cellar, basement, and first story, and replacing the same with new beams of sufficient depth; by taking up the floors of second story adjoining the iron beams supporting the rear wall, examining the same, and replacing any which may be defective ; by taking out the loose portions of the brick cornice, and repairing it; by re-plastering the ceilings, or covering them throughout with wood. If the building is to be hereafter used for the purposes for which it is now used, or for other heavy machinery, the beams of all the floors should be stiffened by girders and columns through center of building, from the sub-cellar to the upper floor of the building.”
    
      John A. Foley (Matthews, Husted & Foley, attorneys), for application.
    
      John V. B. Lewis (Lewis & Beecher, attorneys), opposed.
   J. P. Daly, J.—[After stating the facts.]

It is provided by the act (§ 37) that the report of survey shall constitute the issue to be tried by the court; that is to say, that the truth or falsity of the report shall be inquired into and the necessity for the proposed repairs determined. The report may be regarded as a complaint, the allegations of which the persons interested and served with the preliminary notice are to be regarded as denying of course. But the preliminary notice to bring the parties into court to take issue upon such report is the foundation of the jurisdiction of the court; it is a summons embodying a notice of the matter or thing which the persons on whom it is served are required to litigate. A material departure, in the report of survey, from the notice, to the extent of raising an issue to be tried wholly foreign to the object of the survey as set forth in the notice, gives the court no jurisdiction to try such issue, because the party has had no notice that the survey to be made will embrace any other matter than that pointed ont in the papers served upon him, and cannot be expected to attend, prepared to inquire into any other matter, either at the time and place of survey, or in court at the presentation of the report. This case illustrates, I think, such a departure; the owner, having been notified that this building is unsafe by reason of a dilapidated cornice, and that a survey of the “premises” will be made, comes into court to find himself compelled to try an issue as to the safety of the cornice, incidentally, but principally as to the forcing out of plumb of the wall of the press room by the pressure of its arch ; as to the settling of a pier on the first floor from the weight of a heavy safe; as to the rotting off of the timbers of the sub-cellar, basement, and first floor; as to the deflection of the floors throughout, and the insufficiency of the depth of the timbers for the bearing ; as to the deflection of the iron girders supporting the rear walls of the first floor ; as to the general looseness and dilapidation of plaster of ceilings: as to the general dilapidation of the wood-work of the building; and finally as to the utter unfitness of the building for the purpose for which it is now used.

Not having any notice that the survey to be made could embrace any of these particulsrs, or the general condition of the building, but having express notice that the premises were unsafe because of the cornice, and no other particular being mentioned nor any general reference to other danger being made in such notice, I am forced to hold that the question of the cornice only can be litigated in this proceeding, and that, to compel the repair of the building in other respects, a new survey upon proper notice must be had.

There was no appeal.  