Matter of Lyons v. Prince

*560 Lehman, J. The petitioners are the lessees of premises in the city of New York upon which a building was erected in 1889. The cellar and first floor of the building are used for business purposes. The floors above are used as a lodging house with accommodations for over one hundred lodgers. In October, 1921, the then Commissioner of Buildings issued a certificate of occupancy certifying that the building on the premises “ conforms substantially * * * to all the requirements of the building code and building zone resolution of the City of New York for an existing, non-fireproof, cellar and five story restaurant and lodging house.” The lessees have not, since then, failed to comply with any order given to them by the municipal authorities and there is no contention that the building has been allowed to become seriously deteriorated. In December, 1938, the defendant Prince, as Deputy Commissioner of the Department of Housing and Buildings of the City of New York, served a notice upon the lessees of the building requiring them to “ correct conditions existing in violation of the law,” and specifying the conditions to be corrected. The reason for giving this notice is that, in the opinion of the Commissioner of Buildings and his Deputy, the building cannot safely be used for a lodging house. The changes required, we may assume, are calculated to retard fire and, in case of fire, to provide better means of egress from the building; but for the most part the conditions which the lessees have been ordered to correct do not violate any requirement, formulated by statute or ordinance, which is applicable to this building. If the Commissioner of Housing and Buildings has power to determine, without legislative formulation, what standard of safety should be required for lodging houses and to order the occupant of each lodging house to make such structural *561 alterations as would, in the opinion of the Commissioner, provide reasonably safe conditions for occupants of lodging houses, then orders of the Commissioner to make such structural alterations must be obeyed; at least, unless, in the particular case, the courts decide that the action of the Commissioner has been arbitrary. The lessees, however, contend that the Legislature has not attempted to confer so broad a power upon the Commissioner of Buildings and that the Legislature could not, if it would, delegate to the Commissioner discretionary power to determine what form of construction would, in a particular case, render a lodging house reasonably safe and what changes should be made in existing buildings for such purpose, without defining the limits of the Commissioner’s discretion and fixing the rules and standards which must govern its exercise. Upon that ground the lessees challenge the power of the Commissioner to order structural changes where no statute or ordinance requires that all buildings of similar class used as lodging houses in the city of New York shall conform to the standards of construction which, by notice, the Commissioner of Buildings seeks to impose. The required alterations specified in the notice fall into three separately numbered groups. In regard to the alterations in the group numbered one, the notice states that, “ In accordance with Section 6.1.5 of the Building Code of the City of New York, Section 643A-2.0 and C26-276.0 of the Administrative Code for the City and Section 309 of the Multiple Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.” In regard to the alteration numbered two, the notice states that, “ In accordance with Section 61 of the Multiple Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.” In regard to the group numbered three, the order states, “ In accordance with Section 10.11 of the Building Code of the City of New York, Section C26-669.0 of the Administrative Code for the City of New York, and Section 309 of the Multiplé Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.” *562 The petitioners did not challenge the right of the Commissioner to order the structural change, numbered two, in accordance with section 61 of the Multiple Dwelling Law (Cons. Laws, ch. 61-a). That section provides in part: “ Where business is conducted in any non-fireproof multiple dwelling hereafter erected, the walls]and ceilings of the space where such business is conducted shall be fire-retarded.” Here, the discretion confided to the Commissioner is limited to determination of the kind of fire-retarding construction that shall be required, and for the reasons pointed out in the dissenting opinion of Crane, Ch. J., in this case, the delegation of such discretion to an administrative officer is justified by practical considerations and by principle and authority. The attack of the petitioner is confined to the items in groups numbered one and three. The ordinances and statutes referred to in the notice relating to items in groups numbered one and three formulate no structural requirements to which all buildings used for lodging houses must conform. Concededly, the building leased to these petitioners, when originally constructed, complied with every definite requirement of the law; and approval of the plans and specifications was given in accordance with the law as it then existed. Concededly, too, no statute or ordinance has been enacted which requires that buildings, heretofore used as lodging houses and conforming to the standards of structural safety required when such use began, shall conform to higher standards imposed for buildings erected or altered for such use thereafter. (Cf. Multiple Dwelling Law, § 13.) If the Commissioner has power to require the petitioners to make the specified alterations, that power must be traced to the provisions of section 309 of the Multiple Dwelling Law and is a plenary power, as Chief Judge Crane points out, which may be set aside by the court only upon the ground that the Commissioner has acted arbitrarily. The title of section 309 of the Multiple Dwelling Law is, “ Demolition of and repairs to buildings by the department charged with the enforcement of this chapter.” The section *563 is very long, but in so far as material here provides: “ 1. Whenever any multiple dwelling or the plumbing, sewerage, drainage, light or ventilation thereof, is in the opinion of the department charged with the enforcement of this chapter in a condition or in effect dangerous to life or health, the said department may declare that the same, to the extent it may specify, is a public nuisance, and may order the same to be removed, abated, suspended, altered or otherwise improved or purified as the order shall specify. The said department may order or cause any multiple dwelling or part thereof, or any excavation, building, structure, sewer, plumbing, pipe, passage, premises, ground, matter or thing in or about a multiple dwelling or the lot on which it is situated, to be purified, cleansed, disinfected, removed, altered, repaired or improved.” That section should not, I think, be construed as intended to give the Commissioner power to order structural alterations except where the statute has imposed upon owners or occupants of multiple dwellings a standard or requirement which necessitates such alterations. It seems to me entirely unreasonable to construe that section as intended to give to the Commissioner power to decide what structural alterations, not required by the Legislature, would render safe, for use as multiple dwellings, buildings which, in the opinion of the Commissioner, are not safe. It would be unreasonable, because it is the function of the Legislature to determine what standards of safety should be required for multiple dwellings, and it may not delegate that authority to an administrative officer. In general, the Multiple Dwelling Law has set standards for buildings erected thereafter. In regard to tenement houses it has gone further and has provided that, “ Buildings used as multiple dwellings, though erected prior to 1901 in accordance with the requirements of the laws of the State which were then in force, must now comply with new requirements and higher standards enacted by the legislature, for the protection of the safety and health of those who may live in these houses and, indirectly, of the people of the State.” (Adamec v. Post, 273 *564 N. Y. 250, 253.) It is to be noted, however, that in the opinion in that case the statutes which imposed that requirement upon new buildings are set forth. Discretion was not conferred upon the Commissioner of Buildings to determine what standards should be applied in a particular case. To hold that the Legislature may entrust to an administrative officer plenary discretion to determine how, when and where the safety and welfare and health of the public should receive protection from the dangers created by improperly planned multiple dwellings or lodging houses, seems to me a denial of everything we have said in past cases as to the limited discretion which the Legislature may delegate to an administrative officer. (Cf. Darweger v. Staats, 267 N. Y. 290, and, especially, the distinction drawn between administrative and legislative powers in the case of Matter of Small v. Moss, 279 N. Y. 288.) Here, under the construction urged by the city, the Legislature must have intended to delegate to the Commissioner legislative, power to determine what standards should be applied and, in addition, an administrative power to determine who should be subject to such standards, without any limitation except the usual implied limitation, to which even legislative bodies are subject, that the determination must be reasonable. We do not hold that where the Legislature has said that a fire-retarding construction must be used it may not leave to an administrative officer determination of what form of fire-retarding construction would be best suited to a particular case. Nor do we hold that where the Legislature directs that fire escapes must be erected, it may not leave to an administrative officer choice of where such fire escapes should be located and how they should be erected. We do hold, however, that where a man is using for a lawful purpose, with the approval of the State, ajbuilding which has been constructed and is maintained in accordance with rules and standards formulated directly or through delegated authority by the Legislature, the Legislature may not delegate to an administrative officer power to decide whether higher standards and *565 additional requirements should be exacted for the protection of the public health and safety. That is true even where higher standards and additional requirements might reasonably be exacted and even where the Legislature has been remiss in failing to exact them. The order should be affirmed, with costs.