People Ex Rel. Corn Hill Realty Co. v. Stroebel

Werner, J. On the 10th of September, 1912, the relator applied to the superintendent of buildings of the city of Utica for permission to erect a building on Clinton place. The dimensions of the building were stated to be as follows: 110 feet wide, about 122 feet long and about 16 feet high, and it was to be placed on a lot 120 feet in width by 200 feet in depth. The application states that the building is “ to be used and occupied for buying, selling, dealing in and otherwise disposing of vehicles, automobiles, motor cycles and other personal property. ” The record contains a number of ordinances of the city-of Utica which are pertinent to such matters as the authority of the superintendent of buildings, the character of the structures to be erected under his supervision, and the conditions which must be complied with by an applicant for a building permit, but there is only one which, in our view of the case, need be quoted. This particular ordinance provides that “No person, firm or corporation shall hereafter maintain or conduct a public garage for the storing,- maintenance, keeping, caring for or repairing of automobiles or motor vehicles within the city limits, without permission of the superintendent of buildings.” (No. 215, sec. 1.) There are other provisions of the same ordinance, but they are purely incidental to the real question at issue, and it would serve no useful purpose to refer to them at length. It is enough to say that the superintendent of buildings refused to issue a building permit to the relator because, to quote *437 the superintendent’s own language, “it manifestly appeared from an inspection of the application and plans submitted therewith, that the fair intention of the plans and specifications was to erect, maintain and conduct a public garage. ” In view of the peculiar phraseology of the ordinance above quoted (No. 215, sec. 1), and of the specific ground upon which the respondent refused the relator’s application for a building permit, we have reached the conclusion that the respondent’s determination, and the order of the Appellate Division affirming it, are not sustained by the record now before the court. It will he noted that the ordinance forbids the maintenance or con ducts)f a public garage. It does not prohibit the erection of a building which, although adapted to such a use, could he used for other purposes not forbidden. In these circumstances we must look to the relator’s application and to the other evidence in the record to ascertain what there is to support the respondent’s conclusion that it was the relator’s intention to erect, maintain and conduct a public garage. The relator’s application, in and of itself, discloses no such intention. On the contrary, the statement is that the building is to be “used ánd occupied for buying, selling, dealing in and otherwise disposing of vehicles, automobiles, motor cycles and other personal property. ” In this description of the purposes for which the relator’s proposed building is to he used, we find nothing’ that is within the prohibition of the ordinance. There is nothing in the ordinance which purports to limit the right to erect and occupy buildings for the sale of vehicles, automobiles and motor cycles, and, it may be said in passing, any attempt to exercise any such power would be unconstitutional, for the business of selling such vehicles is as lawful as the sale of groceries or dry goods. When we turn to the record for further evidence upon the subject, we fail to find any that is satisfactory. There is a blue print of the floor plan of *438 the proposed building, and there are the building specifications, but neither of these furnish any evidence that the building is to be used as a public garage. From the general description of the building, and the text of the specifications, we can do no more than to conjecture that the building may possibly be intended for use as a public garage. That is not enough. The trouble with this record is that we have not before us all the evidence that the respondent had before him when he considered and disposed of the relator’s application. The respondent had access to the full plans and detailed drawings.' These may have shown conclusively that the building was designed exclusively for a public garage, but they are not before us and we have no means of determining what they disclosed. In view of this state of the record we must reverse the order of the Appellate Division and the determination of the superintendent of buildings, without attempting to decide whether the enactment of the ordinance in question was a constitutional exercise of municipal authority. That question may be more fairly and fully presented in an action for an injunction if the relator does anything which may bring it within the condemnation of the ordinance. The order of the Appellate Division and the determination of the superintendent of buildings herein are each hereby reversed, with costs in both courts to the appellant.