
    The City of New York, Appellant, v. Burleson Hardware Company, Respondent.
    
      Bépairs upon a State armory in Brooklyn — the State Architect is supreme, except as to plumbing and drainage, the plans for which must be submitted to the superintendent of buildings of New York city — contractor enjoined until this is done — the State of Neto York and State Architect are .not necessary parties to the action.
    
    Section 8 of the Public Buildings Law, as amended by chapter 212 of the Laws o£ 1902, provides as follows:
    “ The State Architect shall prepare the drawings and specifications and supervise- and control, as architect, the construction of all new buildings erected at the-expense of the State. He shall also prepare the drawings and specifications for additions to existing buildings, and for the alteration or improvement, thereof. He shall see that the materials furnished and the work performed in constructing, altering or improving any such building are in accordance with such drawings and specifications, and that the interests of the State are fully protected. He shall prepare regular and standard forms of contracts, to be-approved by the Attorney-General, which shall be used in all' work let by contract, and no payment shall be made on any such ’contract except upon his-regular certificate after audit by the comptroller.”
    Section 5 of chapter 803 of the Laws of 1896 provides that “the plumbing and drainage of all buildings, both public and private, in the city of New York, shall be executed in accordance with the rules and regulations adopted by the- ‘ superintendent of buildings.”
    It also requires suitable drawings and descriptions of said plumbing and drainage to be submitted and placed on file in the department of buildings and prohibits the commencement or the - prosecution of the work “until the said drawings and descriptions shall have been so filed and approved by the superintendent of buildings.”
    
      Held, that, with respect to the repairs upon a State armory in the borough of Brooklyn, the State Architect was supreme in all matters except the plumbing and drainage, and that as to the latter matters the plans therefor should be submitted to the superintendent of buildings of the city of New York, pursuant to the act of 1896;
    That the city of New York was entitled to an injunction restraining the contractor-employed to do the plumbing and drainage work from proceeding with such work until the plans therefor had been filed with the superintendent of buildings;
    That the State of New York could not, without its consent, be made a party to an action to obtain such an injunction, and that the State architect was not a-necessary party thereto.
    Goodrich, P. J., dissented.
    Appeal by the plaintiff, The, City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of September, 1903, denying the plaintiff’s motion for an injunction pendente lite.
    
    
      James McKeen [ John E. Walker with him on the brief], for the appellant.
    
      John Patterson, for the respondent.
   Willard Bartlett, J.:

The controversy in this action relates to the right of the defendant to do plumbing work in the , armory of the Forty-seventh Regiment, in the borough of Brooklyn, without thé submission to-the bureau of buildings of any drawings and descriptions of such work, or the approval of said drawings and descriptions by the bureau. The armory is the property of the State of New York. The contract with, the defendant was made by the board of armory commissioners for the Second Brigade, under the authority of chapter 423 of the Laws of 1902. The plans for the proposed plumbing were prepared by the State Architect in the exercise of his duties,, as prescribed in section 8 of the Public Buildings Law, as amended by chapter 212 of the Laws of 1902. The theory of the action is-that notwithstanding the character of the Forty-seventh Regiment armory as a State building, and notwithstanding the control over its construction conferred upon the State Architect by section 8 of the-Public Buildings Law, the city of New York is entitled to an injunction to restrain the prosecution of the work until there has been a compliance with the rules and regulations adopted by the superintendent of buildings in reference to plumbing and drainage in the city of New York.

Section 5 of chapter 803 of the Laws of 1896 provided that thereafter “ the plumbing and drainage of all buildings, both, public and private, in the city of New York, shall be executed in-accordance with the rules and regulations adopted by the superintendent of buildings.” The same section further required suitable drawings and descriptions of said plumbing and drainage to be submitted and placed on file in the department of buildings, and prohibited the commencement or prosecution of the work until the said drawings and descriptions shall have been so filed and approved by the superintendent of buildings.”

By ’means of various subsequent statutes this enactment has been made applicable to the borough of Brooklyn; and if the Forty-seventh Regiment Armory falls within its scope and operation, it is difficult to escape the conclusion that the defendant is acting in disregard of the law in proceeding with its work without having sub-' mitted its plans to the municipal authorities and obtaining their approval.

The claim of right on the part of the defendant, however, to pror need to perform plumbing work in a State armory in the. city of New York, without regard to the requirements of the act of 1896, is based mainly upon section 8 of the Public Buildings Law, already cited, the provisions of which are as follows :

“ The State Architect shall prepare the drawings and specifications and supervise and control, as architect, the construction of all new buildings erected at the expense of the State. He shall also prepare the drawings and specifications for additions to existing buildings, and for the alteration or improvement thereof. He shall see that the materials furnished and the work performed in constructing, altering or improving any such building are in accordance with such drawings and specifications, and that the interests of the State are fully protected. He shall prepare regular and standard forms of contracts, to be approved by the Attorney-General, which shall be used in all work let by contract and no payment shall be made on any such contract except upon his regular certificate after audit by the Comptroller.”

It will be observed that this statute imposes upon the State Architect not only the duty of preparing the drawings' and specifications for the alteration of existing State buildings, but also requires him to exact the execution of the work in conformity with the drawings and specifications which he has prepared. Taking all the language •of the section together, it seems to me quite plain that it was the intent of the Legislature to confer upon the State Architect general control of everything relating to the architectural plan and architectural details of edifices erected at the expense of the State. It seems to me, however, that this intent can be carried out without necessarily disregarding the provisions of the act of 1896, which in terms are made applicable to the plumbing and drainage of all buildings, both public and private, in the city of New York.” The statute provides for the registration of plumbers in the city, for the appointment of inspectors of plumbing to inspect plumbing work therein, and prohibits the practice of plumbing without registration. Although the department of buildings is charged with the ■enforcement of its provisions, it is plain that the main purpose of the act is to prevent the adoption and use of any plan or scheme of plumbing or drainage in any building within the municipality which ¡shall be so designed or constructed as to be injurious to health. The statute is to be regarded, I think, as primarily a health law rather than a building law; whereas the Public Buildings Law prescribing the powers of the State Architect does not assume to deal, •either expressly or by implication, with matters of health at all. I think the two enactments, so far as they apply to the question at issue here, should be construed together as leaving the State Architect supreme in all matters relating to the armory repairs save so far as the plumbing and drainage are concerned; but that as to these matters the plans must be submitted to the local authorities under the act of 1896, for the reason that the Legislature did not intend that the architectural control, vested in the State Architect, .should exempt public buildings from regulations adopted to promote the public health. Unless this view is correct, I cannot see why the adjective “ public ” — the same which is used in the title of the Public Buildings Law under which the State Architect obtains his powers — should have been used in the act of 1896.

I conclude then that the city is right in this case so far as it .asserts the necessity of submitting to the department of buildings the plans for the plumbing and drainage in the Forty-seventh Regiment Armory, and that the failure to submit such plans gave the city a right of action against persons proceeding with such work until the prescribed drawings and descriptions thereof have received the approval of the superintendent of buildings. The rules and regulations adopted pursuant to the act of 1896 require such drawings and descriptions to be filed by the owner or the architect. The State, as the owner of the armory, cannot be made a party defendant without its consent, and the State Architect does not seem to be ¡a necessary party; it is enough that the party sued is endeavoring to proceed with the work in disregard of the statutory prohibition against so doing until the required papers have been filed with the superintendent of buildings and have received his approval. The fact established upon the motion made out a proper case for granting the preliminary injunction; and it follows that the order appealed from should be reversed and the motion granted.

Woodward, Hirschberg and Hooker, JJ., concurred; Goodrich, P. J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion for preliminary injunction granted ; order to be settled before Mr. Justice Bartlett.  