(1882) — Chapter 410, Section 665. Provisions of Law of 1867, continued.

(1888) — Brooklyn — Chapter 583, Section 37. Provisions of Laws of 1867, continued.

(1895) — Chapter 567, Section 11. (Amends Section 665, Consol. Act.) — Continued.

(1897) — Chapter 378, Greater New York Charter, Section 1322. —Continued.

PUNISHMENT FOR VIOLATION- OF THE TENEMENT HOUSE LAW. — The Act of 1867 made a violation of this provision a misdemeanor, punishable by a fine of not less than $10 or more than $100, or by imprisonment for not more than ten days for each and every day the violation might continue, or by both the fine and imprisonment in the discretion of the court Any person violating the law was also made liable to a further penalty of $10 a day for each and every day that the offence should continue, and the Board of Health was authorized to sue for and collect such penalties, which were to be paid over to the treasurer of the Board. The Act of 1879 amended this slightly, requiring that the penalties when recovered should be paid over to the City Chamberlain and become part of the tenement house fund; and the Act of 1895 provided that the penalty should be paid to the Comptroller instead of to the Chamberlain. This is the present law upon this subject .

(1867) —Chapter 9O8, Section 16.

"Every owner or other person violating any provision of this act after the same shall take effect, shall be guilty of a misdemeanor punishable by a fine of not less than ten dollars nor more than one hundred dollars, or by imprisonment for not more than ten days for each and every day that such violation shall continue, or by both such fine and imprisonment in the discretion of the court. He shall also be liable to pay a penalty of ten dollars for each and every day that such offense shall continue. Such penalty may be sued for and recovered by the Metropolitan board of health and when recovered shall be paid over to the treasurer of said board."

(1879) —Chapter 6O4, Section 6.

Every owner or other person violating any provisions of this act shall be liable to pay a penalty of ten dollars for each and every day that such offense shall continue. Such penalty may be sued for and recovered by the board of health, and when recovered shall be paid over to the city chamberlain, and become part of the tenement-house fund."

(1882) — Chapter 410, Section 665. — Continued.

(1888)— Brooklyn — Chapter 583, Section 37.

"Every owner or other person violating any provisions of Sections 24 to 36 both inclusive (tenement-house law) of this title shall be guilty of a misdemeanor punishable by a fine of not less than ten dollars nor more than one hundred dollars, or by imprisonment for not more than ten days for each and every day that such violation shall continue, or by both such fine and imprisonment in the discretion of the court He shall also be liable to pay a penalty of ten dollars for each and every day that such offense shall continue. Such penalty may be sued for and recovered by the health commissioner and when recovered shall be paid over to the treasurer of the city of Brooklyn."

(1895) —Chapter 567, Section 11. (Amends Section 665, Consol. Act.)

'Every owner or other person violating any provision of this, title shall be guilty of a misdemeanor, punishable by a fine of not less than $10 nor more than $100, or by imprisonment for not more than ten days for each and every day that such violation shall continue, or by both such fine and imprisonment, in the discretion of the court He shall also be liable to pay a penalty of $10 for each and every day that such offense shall continue. Such penalty may be sued for and recovered by the board of health in any civil tribunal of said city, and when recovered shall be paid over to the city chamberlain and "become part of the tenement-house fund, directed by section 194, subdivision 9 of this act, to be annually appropriated to the credit of the health department and to be expended by the board of health. ... No part of Chapter 275 of the laws of 1892, or of any other act shall be so construed as to abrogate or impair the power of the board of health to sue for and recover such a penalty whether the liability to pay said penalty shall arise from a violation of the laws, ordinances or sections of the sanitary code, in regard to light, ventilation, plumbing and drainage, so far as the same affects the sanitary condition of the premises; and except that the department of buildings of the city of New York shall have jurisdiction and cognizance over all matters and things in this title contained which relate to the construction of buildings or structures or any part thereof, and as to light, ventilation, drainage and plumbing. Any penalty for a violation of the provisions of this title in respect to the matters aforesaid" shall be sued for and recovered in the same manner as the violations of the building laws of the city of New York are now sued for and recovered by the department of buildings in the city of New York; and said penalty so collected shall be paid to the comptroller of the city of New York to be applied as other penalties collected
by said department are applied."

(1897) — Chapter 378, Greater New York Charter, Section 1322.

Provisions of the law of 1895 continued with the following slight changes : Beginning with the word " and " after the word " chamberlain " omit all the matter from there down to the beginning of the words " No part"; * also, after the word " construction " insert the words " or alteration ;"also after the word " plumbing " insert the words " of such buildings when in process of construction or alteration." After the word " penalty " * insert the words " hereinabove mentioned." After the word " aforesaid" * insert the words " within the jurisdiction and cognizance of the department of buildings." For the word " comptroller,"* substitute the word " chamberlain."

INJUNCTION TO RESTRAIN PERSONS VIOLATING PROVISIONS OF THE TENEMENT HOUSE LAW—In addition to the other remedies of civil and criminal actions given to the Board of Health by previous statutes, the Board of Health in 1887 was given the remedy of injunction in certain cases, i.e. where there was any violation of the terms and conditions of the plan for any tenement or lodging house approved by the Board of Health, or of the conditions of the permit granted by the Board for the light and ventilation of the buildings, or where there was any violation of the provisions of the tenement house laws in reference to the percentage of the lot occupied, the amount of space left vacant at the rear of the building, the amount of space left vacant between front and rear tenement houses, and other similar provisions, any court of record or any judge or justice of a court of record was authorized to restrain, by an injunction order, the further progress of the building, but only after an action had been brought by the Health Department and only upon proof by affidavit of such violation, and that a service of the notice of the violation or non-compliance of the law had been made upon the owner or builder of the house, or other person superintending the building operations. These powers of the Health Department were, in 1892, transferred to the Department of Buildings, all of their powers, in relation to light and ventilation in new buildings being vested in the new Building Department. Since 1892 there has been no change in the law, and it is the present law upon this subject.

(1887) —Chapter 84, Section 10.

"In case of any violation of the provisions of this section, or of any failure to comply with, or of any violation of the terms and conditions of the plan for such tenement or lodging-house approved by the said board of health, or of the conditions of the permit granted by the board of health for such house, or for the air, light and ventilation of the same, any court of record or any judge or justice thereof, shall have power at any time after service of notice of violation, or of non-compliance of the owner, builder, or other person superintending the building or converting of any said house, upon proof by affidavit of any violation or non-compliance as
aforesaid, or that a plan for the light and ventilation of said house has not been approved by the board of health, to restrain by injunction order in an action by the health department of the further progress of any violation as aforesaid. No undertaking shall be required as a condition of granting an injunction, or by reason thereof."

(1887) —Chapter 288, Section 1. — Continued.

(1891) —Chapter 204, Section 1. — Continued.

(1892) — Chapter 238, Section 1. — Continued.

(1895)— Brooklyn —Chapter 539, Section 1. (Amends Section 55, Consol. Act.) — Continued.

(1895) — Chapter 567, Section 8. (Amends Section 661, Consol. Act.) —Continued.

1896) — Brooklyn — Chapter 355, Section 1. (Amends Section 55, Brooklyn Consol. Act.) —Continued.

(1897) — Chapter 378, Greater New York Charter, Section 1318.

Continued with the following addition: After the word " by " and before the words "board of health" insert the words "department of buildings or by."

BOARD OF APPEAL—Since the creation of the Department of Buildings, in 1802, there has always been some body vested with the power of modifying or setting aside the law in special cases. The act of 1862 gave to the "department for the survey and inspection of buildings" full power in reference to the manner of construction, kind or quality of materials to be used in the erection of any building in the city, whore the law did not specifically provide for it, and the Department was also authorized to make all materials and methods of construction conform to the true intent, meaning and spirit of the building laws. In addition, the Department was given discretionary power to modify or vary any of the provisions of the act in special cases, but only where it did not conflict with public safety or the public good, in order that substantial justice might be done and the spirit of the law conserved, but such modification could only be granted upon an order being obtained from the Supreme Court, after a sworn petition had been made to the court setting forth the reasons why the provisions of the law should be modified in each special case. This provision of the law of 1802 was reenacted in the building law of 1866 and again in 1871, but was in 1874 very materially changed. The new act took away from the Supreme Court the power to modify the law and vested this power in a newly created " board of examiners." This Board of Examiners was constituted in the following manner: Its members consisted of the Superintendent of Buildings, a representative of the examining committee of the New York Chapter of the American Institute of Architects, one of the ex-presidents of the New York Board of Underwriters and two members of the Mechanics and Traders' Exchange, one of whom was required to be a master carpenter and one a master mason, and all of these persons were to be selected by their respective organizations, excepting, of course, the Superintendent of Buildings. The law provided in no way for the removal of the members of this Board, but allowed the Board to perpetuate itself from year to year. The same law also required that no application to modify the law should be passed unless it received at least three affirmative votes of the Board; also that no member of the Board should pass upon any question in which he was pecuniarily interested. The Board was to meet upon the call of the Superintendent of Buildings, and each member, excepting the Superintendent, was to receive ten dollars for each meeting that he attended, but in no case were they to receive compensation for more than two meetings in any month. In 1882 this law was slightly changed, the chief clerk of the Bureau of Buildings of the Fire Department acting as clerk of the Board, instead of the Superintendent of Buildings. In 1885, however, the law was very much modified, the powers of the Superintendent of Buildings to vary or modify the provisions of the laws being very much restricted. This power was to be exercised only in case of alterations to old buildings, in the use of party walls belonging to different owners where the party walls could not be taken down; and generally, only where there were practical difficulties in the way of carrying out the strict letter of the law, the purpose of the modifications being to see that the spirit of the law was observed and public safety secured and substantial justice done. It was further provided that no modification of the law should be permitted unless a record of it was kept by the Superintendent of Buildings and a certificate issued to the person applying for the modification, and such certificate was not to be issued until it had first been passed upon by the Board of Examiners appointed under the Act of 1874; the composition of this Board was in this year somewhat changed. The two members of the Mechanics and Traders' Exchange were no longer required to be carpenters and masons, and a member of the Society of Architectural Iron Manufacturers, and a member of the Real Estate Owners and Builders' Association were added to the members of the Board. In the new Board, four affirmative votes were necessary to pass an application instead of three. In addition to the reasons above set forth for modifying the law, it was further provided that in cases where it was claimed by the owner of the building or his representative, that the provisions of the building law did not directly apply to the form of construction he desired to use, or that an equally good and more desirable form of construction could be employed than that required by the law, then the owner was given the right to present a petition to the Board of Examiners, asking to be authorized to use such a form of construction, and the Board was empowered to grant or reject his petition, and it was also added that their decision should be final. In 1892 this part of the law was again changed, and the law materially weakened; the previous act had permitted modifications of the law only in cases of alterations to old buildings in the use of party walls belonging to different owners, where the party walls could not be taken down; this provision was stricken from the new law. The chief of the Fire Department was added to the Board, and five affirmative votes were considered necessary instead of four to the granting of any application, and the Superintendent of Buildings and the Chief Clerk of the Building Department were authorized to receive compensation at the rate of ten dollars a day in addition to their other salaries for each meeting that they might and a member of the Real Estate Owners and Builders' Association were added to the members of the Board. In the new Board, four affirmative attend.

The Greater New York Charter reenacted most of the provisions of the law of 1892 in reference to this subject, though in a slightly modified form; it gave to each Commissioner of Buildings the power to pass upon any question relating to the manner of construction or the kind of materials to be used in the erection of any building, and to require that such materials and manner of construction should conform to the true intent (if the building laws, and in case the commissioner should reject or refuse to approve any special form of construction, then the owner of the building was authorized to appeal from his decision to the Board of Buildings which was composed of the three commissioners; but no such appeal could be made except where the amount of money involved by the decision exceeded the sum of $1000. This provision of the law, however, applied only to the boroughs of Brooklyn, Queens and Richmond, but not to the boroughs of Manhattan and the Bronx; in the latter boroughs any appeal from the decision of the commissioner is required to be taken to the Board of Examiners, created by the Act of 1874, and added to by subsequent acts. The law sets forth in considerable detail the conditions under which such appeals may be taken, and provides that the decision of the Board of Buildings in the boroughs of Brooklyn, Queens and Richmond and the decision of the Board of Examiners in the boroughs of Manhattan and the Bronx shall be final, and that no other appeal may be made. Another section of the Charter also gives to each Commissioner of Buildings, with the approval of the other two commissioners, the power to vary or modify any rule or regulation of the Board of Buildings, and also the power to vary or modify any existing law or ordinance relating to the construction of buildings, where there are practical difficulties in the way of carrying out the strict letter of the law, so that the spirit of the law may be observed and public safety secured and substantial justice done, but no such variation of the statute is to be allowed except by a vote of a majority of the Board of Buildings.

The Building Code, a local ordinance adopted in 1899 by the Municipal Assembly (under authority vested in it by Section 647 of the Greater New York Charter), provides also that each Commissioner of Buildings shall have power, with the approval of the Board of Buildings, to vary, not only any existing law or ordinance, but also any of the provisions of Chapter 12 of the Greater New York Charter, in relation to the erection of buildings, pursuant to the provisions of Section (VX) of the Charter above quoted. The act also provides that the Board of Examiners for the boroughs of Manhattan and the Bronx shall be continued as provided for in the Charter and in the previous acts.