
    Samuel Heymann, Respondent, v. John P. Steich, Appellant.
    Second Department,
    October 8, 1909.
    Real property — vendor and purchaser — encroachment of bay window on street — municipal corporations — powers of building commissioned, borough of Brooklyn — contract for sale of lands construed.
    The commissioner of buildings of the borough of Brooklyn lias no power to authorize the construction of a bay window extending into the street more than one foot from the building line contrary to the municipal ordinance limiting such encroachment to one foot.
    
      Where a contract for the sale of lands provides that an encroachment of less than twelve inches by a bay window shall be accepted by the vendee, the latter may reject the title and recover earnest money paid if the window encroaches two feet upon the street contrary to a municipal ordinance.
    The parties having themselves agreed as to the limit of such encroachment, the court will not compel the vendee to take title upon the ground that it is improbable that the municipal authorities will ever compel the removal of the encroachment.
    Appeal by the defendant, John P. Steich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      James Troy [Whitmel H. Smith with him on the brief], for the appellant.
    
      Jacob Brenner, for the respondent.
   Judgment affirmed, with costs, on opinion of Mr. Justice Carr at Special Term.

Hirschberg, P. J., Gatsob, Burr, Bich and Miller, JJ., concurred.

The following is the opinion of Mr. Justice Carr:

Carr, J.:

The plaintiff sues to recover back a deposit of $500 paid to the defendant under a written contract for the sale of real property in the borough of Brooklyn. The facts involved are undisputed and the sole question arising is one of law.

Controversy arises because of the fact that the building on the land described in the written contract had a large bay window, which projected beyond the house line two feet. The defendant claims that this projection of the bay window constitutes no defect in the title of the vendor, and asks, therefore, that the plaintiff be compelled to specifically perform the contract by accepting the deed to the property in question. To sustain this contention he cites a number of cases which have arisen in the city of Hew York, at various times in recent years, the first of which is Broadbelt v. Loew (15 App. Div. 343; 162 N. Y. 642).

In that case it was held that where a bay window projected seven and one-half inches, more or less, beyond the building line, and at the same time the duly enacted ordinances of the city of New York permitted the construction of bay windows not extending beyond the house line more than one foot, the alleged defect arising from the projection of the bay window was unsubstantial.

It is quite evident from the reading of the opinion in that case that the court proceeded in its decision upon the theory that the common council of the city of New York had the right to enact ordinances of the nature described, and that a projecting bay window’ was within the permissive scope of such ordinances ; the later case of Levy v. Hill (70 App. Div. 95) is based expressly upon the former decision in Broadbelt v. Loew, and it in turn was affirmed by the Court of Appeals (174 N. Y. 536). In the case at bar the defendant contends that the encroachment of the bay xxdndoxv in question was authorized by the authority of the city of New York at the time of the erection of the building. It appears in exddence that plans were filed with the building department of the city of New York, showing that the bay window projected and that said plans were approved and permission given to build. It is claimed by the defendant that the commissioner of buildings of the borough of Brooklyn, city of New York, has authority for the municipality to permit the encroachment in question, and that, therefore, it constitutes no unlawful encroachment upon the highxvay. This authority is said to come from chapter 481 of the Laws of 1894. Chapter 481 of the Laws of 1894 amended the charter of the city of Brooklyn in relation to the building department of said city, and the construction and alteration of buildings therein.

After the consolidation of the city of Brooklyn into the city of New York, all powers cast upon the building commissioner of the city of Brooklyn, by the act in question, were continued by provision of the Greater New York charter, as were likewise all ordinances in force in the city of Brooklyn at the time of consolidatíon. These ordinances provided that “ no person shall construct any bay window or other window which shall extend into any street more than one foot from the wall of any house or other building.” I can find nothing in act of 1894 which gave the commissioner of buildings of the city of Brooklyn any power to sanction the violation or avoidance of the ordinances relative to highways. It 'is true that the act in question provides that such commissioner “shall also have power to vary or modify the provisions of this title upon application to him therefor, in writing, by the owner of such building or structure, or his representative, where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law shall be observed, the public safety secured and substantial justice done.” (§ 33.)

Tliis provision relates, however, only to the various other provisions specified in the act, and in no way confers upon the commissioner any authority over the public highways or the use of any part thereof.

I am of the opinion, therefore, that the encroachment in question cannot be considered to be authorized by lawful authority, as was the case in the decisions above cited.

There are some cases, however, which hold that even where the encroachment is without authority inasmuch as the question involved can arise only between the owner and the municipality, the court will not deem the defect substantial where it is improbable that the municipality will take any action to remove the alleged encroachment. (Empire Realty Corporation v. Sayre, 107 App. Div. 415.)

It seems to me, however, that the parties to this contract had this question before them when they entered into the contract, and agreed among themselves what should be the relative duties of the parties thereto in regard to the encroachment in question. The contract provides in part as follows: “ It is also understood that any encroachments by bay windows on the street of less than twelve inches shall be accepted by the party of the second part.”

In ascertaining the mutual intention of the parties to the written agreement, resort will be had to the part of construction expressio unius est excltosio alterius.

It seems to me, even from the contract itself, there was some

doubt at the time of its making as to the extent of the encroachment of the bay window in question. That there was some encroachment was found, its extent only being open to verification. It was distinctly provided that the vendee should he compelled to accept the deed if the extent of the encroachment was less than twelve inches. If this means anything, it must mean that such obligation was not to exist if the encroachment was more than twelve inches, but two' feet, as in this case. The reasons for this seem quite plain to me; both by the ordinances of the city of Brooklyn, which were then in force, and by the general ordinances of the whole city of New York, encroachment of bay windows from the buildings to the extent of one foot were permissible. The parties evidently had in mind the protection of the vendee against the situation in which there might be an encroachment beyond the provision of the ordinances, and thus expose him to-the possibility of subsequent action on the part of said authorities whenever they saw fit to enforce tile ordinance in question. The parties having so agreed between themselves, it is not for this court to say that because it thinks it very improbable that the said authorities will ever act to compel the removal of the encroachment, the plaintiff should be compelled to waive the protective provisions of his contract.

Judgment is directed for the plaintiff for the recovery of the deposit and the expenses of searching the title, for the amount agreed upon.  