
    Tenement House Department of the City of New New York, Respondent, v. Herman Whitelaw, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Penalties — action to recover — absence of evidence —r when motion to dismiss granted — Tenement House Law, § 124.
    In order to recover a penalty under section 124 of the Tenement House Law for a violation of section 120 thereof, which provides: “ The construction, alteration or conversion of such house, building or structure shall be in accordance with such approved specifications and plans,” plaintiff must prove that after the plans were filed and approved alterations were made but not in conformity with the plans, and in the absence of proof that either or both of two sets of plans received in evidence were ever approved, or a permit issued thereunder, or that work had been done after the filing of the plans, defendant’s motion for a dismissal of the complaint at the close of plaintiff's ease should have been granted.
    
      Appear by the defendant from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of the plaintiff.
    Louis Rosenberg, for appellant.
    Lamar Hardy (John P. O’Brien.and John P. Morris, of counsel), for respondent.
   Gavegan, J.

This action was brought to recover a penalty under the Tenement House Law. Section 124 of the Law provides for two penalties differing in amount: (1) The payment of the sum of fifty dollars upon proof of the existence of a violation without regard to the service of a notice thereof upon the owner, and (2) the payment of $250 upon proof of the existence of a violation, the service of a notice or order requiring its removal and failure to remove the same within five days after the service of the notice or order. Plaintiff upon a verified complaint sought to recover the larger penalty and failed to make out a cause of action therefor in the absence of competent proof of service of a notice. The court below, however, gave a judgment against the defendant for the sum of fifty dollars evidently upon the ground that a violation had been shown. No amendment of the complaint was asked for, and under the pleading in conforming to the rule secundum allegata et probata the judgment might well be reversed, but we prefer to base our decision upon other grounds. On examination of the testimony it is clear that the plaintiff failed to show any cause of action against the defendant.

The 4th paragraph of the complaint sets up, “ 4th; upon information and belief that at the times hereinafter mentioned there existed and still exists in said tenement house and on said lot violations of the said Tenement House Law, to wit; of sections 124 and 120 of the said law, and the laws amendatory thereof and supplementary thereto, as follows: alterations did not conform to plans and applications filed with and approved by the Tenement House Department.”

Here follow several particulars in respect, to which it is alleged that the alteration of the building does not conform to the plans or applications filed. Section 120 of the Tenement House Law, so far as it is involved in the complaint, reads as follows: The construction,- alteration or conversion of such house, building or structure, shall be in accordance with such approved specifications and plans.” In order to recover, it devolved upon the plaintiff to prove (1) the filing of specific plans and specifications and the approval of such plans by the tenement house department; (2). the doing of the work or alterations subsequent to the filing and approval of the plans and specifications, and (3) the nonconformity of the work and alterations with those plans and specifications.

It is conceded" that the defendant did not file any plans for the alteration of the building, those having been previously filed by his grantor. Two sets of plans were filed and those were received in evidence. Their reception however was limited to the mere fact of their filing, and there was no evidence whatever that they were ever approved or that a permit was issued thereunder. There was nothing to show that either or both the plans were in effect or that the work had been done after the filing of the plans. There was, it is true, testimony given to the effect that the conditions mentioned in the items designated in the complaint existed at the time the employees of the plaintiff made their examination, but, non constat, they may have existed long prior to the -filing of the plans and specifications. The filing of plans and doing no work thereafter does not constitute a violation. The plaintiff was required to prove that after the plans were filed and approved alterations were made but were not in conformity with the plans. In this it failed. The defendant offered no testimony but moved for a dismissal of the complaint at the close of plaintiff’s case, which, as the proof then stood, should have been granted.

Guy and Bijur, JJ., concur.

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