
    THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Respondent, v. CORNELIUS VAN COTT, et al., as Commissioners of the Fire Department, and the Fire Department, &c., Appellants.
    
      Decided March 2, 1885.
    
      Gity property—Departments, rights of as to occupancy.—Where one department of the city government has, with the consent of the proper city authorities, occupied a part of its real estate, and finding it had no further use for it, permitted another department to enter and occupy, and such other department did enter, made alterations to suit its requirements, and continued in occupation for a number of years, presumably with the consent of the city authorities, the former department cannot re-enter into its occupation without the consent of such other department. “ Lately in custody ”—Definition of as used in article 10, ch. 337, Laws 1870.—Where a piece of real estate had been for several years in the custody of one independent department, that period cannot be skipped over so as to refer the word lately to a prior occupancy by another independent department. This, though the former department came into actual custody through the permission of the latter one.
    Before Sedgwick, Ch. J., Tritax and O’Gorman, JJ.
    Appeal from an order continuing an injunction.
    At some time prior to the year 1865, the city authorities acquired the building, No. 128 Worth street. It was thereafter, with permission of the city, used and occupied by the volunteer fire department. By chapter 249 of the laws of 1865, the volunteer department was abolished, and the metropolitan fire department was established in its stead. Section 17 of this act directed that all property then in use by the fire department be turned over to the metropolitan fire department, and in pursuance of this requirement the building in question passed to the new department. Sometime about February, 1867, this building went into the hands of the health board, with the consent of the fire department, and the health department continued to use and occupied until it was rented by the fire department as hereafter set forth.. The metropolitan fire department was abolished, and a new department created, by chapter 137 of the laws of 1870, the 10th article of which provided “The said fire department is hereby empowered . . . . upon due organization as a department, to take possession of, for its use, all city property and apparatus and books then or lately in custody of the metropolitan fire department,” which was continued by chapter 335 of the laws of 1873. In March, 1884, the fire department, finding need for this building in its service, requested the health department to surrender its possession. This was refused. Thereupon the appellants took possession of the building on May 30, 1884.
    Upon this, respondents commenced an action to restrain the defendants, and obtained an order to show cause why an injunction pendente lite should not be made.
    The motion for the injunction came on before His Honor Judge Van Vorst, at special term, who after hearing argument delivered the following opinion :
    Van Vorst, J.—“The defendants, even if they had the unquestioned right to the occupancy of the building in question, selected an unfortunate season for asserting it, and can scarcely be justified in the means they adopted for getting into possession. Their entrance seems to have been accompanied by force. Ho department of the public service can be sustained in ousting in this way another department in the possession of property which is owned by the city, and which is in actual use in the public service and interest.
    “ The building in question many years ago was in the occupation of the fire department, but it is city property. In 1867, the health department entered into possession, and has ever since occupied it, using it for their ambulances, as a depository for chemicals and other remedies for disinfecting purposes. The basement is in use for stabling the horses which the department needs, and the other part for the accommodation of their servants and employees. The whole building is occupied, and that necessarily, for the needs of this department. The defendants allege that they loaned the building in 1867 to the health department. Their right to loan a public building which they did not need at the time, may well be questioned. If the building was not required for their then use, it should have been surrendered to the city authorities to the end that it might be applied to proper public purposes.
    “ What ought to have been done must be considered to have been done, and that the use by the plaintiff for fourteen years of the premises, has been with the consent of the city. In this view, the health department cannot be, in effect, forcibly ejected from the building by the defendant department. This is a season of the year when the operations of the health department should not be arrested, and when, in fact, its best efforts are to be put forth to maintain the sanitary condition of the city. The city authorities should, in the end, determine which department should occupy the buildings, and should supply the requisite accommodations to both.
    
      “ Conceding all that is urged by Mr. Findley, the counsel for the fire department, as to the needs of the fire department for additional accommodation for its coal wagons and hose, no good end is attained by turning into the street the ambulances, horses and supplies of the health department, and hindering it from continuing its operations when so greatly needed. Since the health department has been in possession, the building has, by alterations, been adjusted to its needs. The injunction granted by Judge O’Gorman must therefore be continued until the hearing. With respect to the application to punish for contempt the same is denied.”
    From the order entered in conformity with the opinion the defendants appealed.
    
      William L. Findley, attorney, and of counsel for appellants.
    
      
      William P. Prentice, attorney, and of counsel for respondent.
   Per Curiam.

At the time of the passage of chapter 410, Laws of 1882, the real estate in question was not in use by the fire department of the city, which the act abolished. It had ceased, or rather one of its predecessors had ceased to use the building. At the passage of chapter 137, of Laws of 1870, § 84, the metropolitan fire department had not had lately the custody of the building; for in 1867 that department had transferred the custody to the plaintiffs. The plaintiffs had no power to hold under the then fire department. The fire department could not have a custody through the plaintiffs, that acted as an independent body under the law. The legislature and the city corporation knew what department had actual use, actual custody at the time the acts were passed. On the facts, the plaintiffs were in use and in custody by the recognition of the city before any point of time, that could be deemed to be lately, as to use or custody by the fire department.

The order is affirmed, with $10 costs, and disbursements to be taxed, upon the opinion of the judge at special term.  