IN RE UNSAFE BUILDING, NOS. 216, 218, AND 220 BROOME ST., IN CITY OF NEW YORK.
Appeal from Special Term, New York County.
Application by the City of New York respecting an unsafe building owned by Jacob Levy and leased by Morris Somach. From an order vacating a notice of lis pendens, the City appeals. Affirmed.
Francis K. Pendleton, Corp. Counsel (John F. O'Brien, of counsel, and Samuel J. Parmenter and John F. Collins, on the brief), for appellant.
Kellogg & Rose (William K. Kartpence, of counsel, and L. Laflin Kellogg, on the brief), for respondent.
Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
On the 25th of February, 1907, at about 3 o'clock in the morning, a portion of the building known as Nos. 216, 218, and 220 Broome street, borough of Manhattan, owned by Jacob Levy, was destroyed by fire. By reason of the fire the walls became badly cracked, broken, and out of plumb, and the woodwork was in a burned and damaged condition, leaving said building in an unsafe and dangerous condition, and, in the opinion of the superintendent of buildings, in actual and immediate danger of falling, so as to endanger life and property. It appears by the records of the fire department, in evidence, that the said fire was extinguished at 9:12 o'clock on said day. At 11 o'clock Bart Dunn, a contractor employed for that purpose by the superintendent of buildings, commenced work upon the building to make it safe. At about 12 o'clock on said day the owner received a notice from the superintendent of buildings, stating the condition of the building and that:
" You are therefore required to make same safe and secure by immediately taking down all cracked, broken, bulged, and out of plumb brick walls forthwith; also take down and remove all damaged woodwork, replace and rebuild all of above brick walls and burnt woodwork in a good safe condition and according to law. You will also take notice that you are hereby required to immediately certify to the superintendent of buildings for the borough of [114 N.Y.S. 1019] Manhattan your assent or refusal to secure or remove said building, and that unless you so do a survey will be ordered to be held thereon as the law directs, and that all costs and expenses thereby will become a lien on said building and premises."
The attorney for the owner wrote on the same day, February 25th, to the bureau of buildings:
" I demand in pursuance of the law in such case made, an immediate survey, and I further notify you, so that any work done by your department upon the said premises shall not become a lien upon the same, but on the contrary shall be paid for and taken out of the contingent fund used and provided for that purpose. I further notify you that I am ready to accept service of all papers in this matter on behalf of the owner, Jacob Levy. I send you this letter, confirming a message sent to your office on the telephone this day. I hereby waive the five days' notice required of your department, and stand ready to accept service at once."
To this letter was attached, " I consent to the above," signed by the owner. On February 26th the superintendent of buildings sent a similar notice to that heretofore referred to as sent on the 25th. On February 28th a notice was sent that a survey would be made on the 2d day of March, at 11 o'clock in the forenoon, and that, in case the said premises should be reported unsafe or dangerous under the said survey, the said report would be placed before the Supreme Court on the 5th day of March, and that a trial upon the allegations and statements contained in the said report would be then and there had. The owner joined in the survey and appointed a representative, as required, and the survey was had on the 2d day of March. On the 5th of March the report of the survey came before the Special Term, was confirmed, and a precept was duly issued on said day, directing that the walls of said premises be made safe and secure by immediately taking down all cracked, broken, bulged, and out of plumb brick walls, and also taking down and removing all damaged woodwork.
Immediately upon the issuance of said precept the owner paid the expenses and disbursements of the preliminary survey and searches, and received a receipt therefor, and with the consent of the department of buildings proceeded to take down all cracked, broken, bulged, and out of plumb brick walls, and to take down and remove all damaged woodwork, in accordance with the requirements of said precept, and had completely taken down and removed the same within one week from the issuance of the said precept. On March 5th the city caused to be filed in the office of the clerk of the county of New York a notice of pendency of proceedings, as follows:
" Notice is hereby given that a proceeding has been commenced and is pending in this court for the enforcement of the laws and ordinances relating to the construction, alteration, or removal of buildings or other structures in the city of New York, and that the costs and expenses incurred in the execution of the precept of said proceedings, the disbursements of said proceedings, together with the preliminary expense of searches and surveys may be recovered from the above-named persons, and the amount thereof be adjudged to be a lien upon the buildings and premises named in the notice of survey herein, a copy of which is filed this day in the office of the clerk of the county of New York."
After the owner had complied with all the requirements of said precept, he caused to be erected upon said premises a new building, [114 N.Y.S. 1020] and in June, 1908, being desirous of obtaining a mortgage upon said premises, the title company, in searching the title, having found the notice of pendency of proceedings above alluded to on file, the owner, upon inquiry of the corporation counsel, found that the said lis pendens was being kept upon said premises by reason of a claim by the city of New York for expenses claimed to have been paid to one Bart Dunn, a contractor, for $6,233.61, claimed in his bill to have been done for work upon the building between February 25 and March 2, 1907, both inclusive.
It will be seen that the work for which the lien is claimed was all done before the survey and before the issuance of the precept on the 5th of March, and it is uncontradicted that, although the work required to be done by said precept had been in all respects performed and complied with by said owner on or before the 12th of March, 1907, no action was taken by the city of New York, or the commissioner of buildings, to return said precept, nor was any action taken in regard to the prosecution of any claim under said lis pendens. The owner made a ...