
    The People of the State of New York ex rel. Charles Cornman and Others, Respondents, v. Edmond J. Butler, as Tenement House Commissioner of The City of New York, Appellant.
    Second Department,
    June 21, 1907.
    Public health.— Tenement House Act construed—meaning1 of “ alcove rooms ” — requirements as to window.
    The words “alcove rooms” as used in section 71 of the Tenement House Act, as amended by chapter 352 oí the Laws .of 1902, mean rooms containing, an alcove, not tire alcove itself. Hence, if an alcove room contain at least one window opening directly upon a street or upon a yard or court as required by. section 67, and said window, as required by section 68, is at least one-tenth of the floor area of the room and its alcove taken together, the tenement house commissioner will-be required by mandamus to approve the plan.
    Appeal by the defendant, Edmond J. Butler, as tenement house commissioner of the city of New York, from an order of the Supreme Court, m.ade -at the Kings County Special Term and entered in the office of- the clerk of said comity on the 2d day of January, 1907, granting the -relators’ motion .for a peremptory writ of mandamus directing the appellant to approve the plans of the relators for the construction of a tenement house,
    
      
      Theodore Connoly [John P. O'Brien, Samuel J. Parmenter and William B. Ellison with him on the brief], for the appellant.
    
      Robert H. Roy, for the respondents.
   Gaynor, J.:

The learned judge below correctly decided this case. It is required by section .67 of the Tenement House Act (Laws of .1901, chap. 334) that “ every room ” in a tenement house shall have at least one window opening directly upon the street or upon a yard or court ”; and by the next section that the “ window area in each room ” shall be at least one tenth of the floor area of the room. And then section 71, as it was at first, provided in its entirety as follows: •

Alcoves.-^- In every tenement house hereafter erected where any room adjoins another room, and has eighty per centum or. more of one entire side open to the other room, and there is no door between, it shall be considered as part of the said room. • Under other circumstances every alcove shall be deemed a separate room for all purposes within the meaning of this act.” ■

But all of this section was. dropped in 1902 (chap. 352), and in its stead the following was substituted, viz.:

“ Alcoves.— Alcove rooms must conform to all the requirements of other rooms.”

The change thus made in the statute is this, viz.: By section 71 in its original form the requirement was that every room ” had to have at least one window, and the window area of each room had to be at least one tenth of the floor area of’the room; and in applying these requirements an alcove ” of a room had to be taken as a separate room, unless at least eighty per cent, of one side of it was open to the room it belonged to or was to be considered as part of ”. In other words, if eighty per cent, of the side of such alcove was not thus open, such alcove had to have a window or windows, according to its floor area, as though a separate room, but if its side was thus open it did not have to have any window; its floor area went with the floor area of the room it belonged to, and if there were in the main room window area equal to one tenth of the combined floor area of such room and its alcove, that sufficed. By the new section 71 all of this was done-away with, and it was simply provided instead that “alcove rooms” should he under the same rule as ah other rooms, i. <?., an alcove room, i. e., a room with or having an alcove, was thereafter not to he treated as two rooms in any case, hut as one room, just like all other rooms. An “ alcove room ” is a room with an alcove. An alcove is not an alcove room, but only part of it. ■ That is the universally accepted meaning of the phrase. An “ alcove room ”. is not the alcove of a room. The recess or alcove of a room is part of such room. But it-is not necessary to depend on definition, for it is fully alleged in the moving papers and not denied' that this is the meaning of the phrase.

The tenement house commissioner has ruled, however, that the ■phrase “alcove rooms” in the new section 71 means “alcoves”, and- not “ alcove rooms ” ; or that an alcove is an “ alcove room”. Following this up, he has ruled as matter of fact that the building plans of this relator show an alcove to the parlor ■ room ; and he treats such alcove as. a separate room, and because it is not on a street, yard or court, with a window opening thereon, he refuses to approve such plans. That the window area of the whole room, including the alleged alcove, is at least ten per cent, of the area of the whole room, is not disputed, but he claims that the room must be deemed two separate rooms, the-part he calls an alcove to be one room, and that the test of windows and window area must be applied to each separately. He is wrong in his ruling of fact as ■ well as in his ruling of law. An inspection of the parlor on the plans shows no alcove there. But, it is argued, such parlor can be easily divided into a room and an alcove, or into two rooms, and used as such, by a tenant. Certainly, every room, if lai-ge enough, or long enough, can be divided into two rooms by curtains, a thin partition, or otherwise; but the .commissioner may not treat it as two rooms for that reason. His business is not to make arbitrary rules, but to administer the law as it'is.

It is not for the courts to follow the commissioner in substituting in the statute a meaning which it does not express for the one which it does,' by interpolating the word “ alcoves ” for “ alcove rooms ”. Hor, if it comes to that, can it be believed that the legislature had the extraordinary intention of requiring that every alcove, however small or narrow, should be treated as a separate room, and required to be on a street, yard or court with a window thereon. This is quite incredible, and it is certainly not expressed by the' words used. Rooms with recesses or alcoves are in use everywhere.' That such recesses may no longer .be built in our' large cities except they be on streets, yards or courts, and with windows thereon, is not expressed by the statute. It is useless to say that was the legislative intention. Ho legislative intention may ever be found unless there be words expressing it. It cannot be left to inference.

If the new section II had been the original section, who would think of attributing to it the meaning which the commissioner has given it ? And we have to interpret it now as we would have done then, i. e., nothing is enacted by it which. its words do' not express.

The final order should be affirmed.

Hirsohbeeg, P. J., Hooker and Rich, XT., concurred; .'Woodward, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  