In re Clement

58 Misc. 638, 111 N.Y.S. 1073

Opinion

Crane, J.

Within the radius of 200 feet from 430 Ridge-wood avenue there were¿ in November, 1907, seventeen buildings claimed to be occupied exclusively as dwellings. For six of these no valid consents were given.

As to 415 Ridgewood avenue, the consent was signed by Florence Mahoney, but his wife, Julia Mahoney, was. the owner; while, as to 414 Ridgewood avenue, the consent was signed and acknowledged by Mr. Stafford, but not his wife, who was ioint owner of the property. Quigley v. Monsees, 56 Misc. Rep. 110.

.If there were seventeen dwellings, the defendants had eleven consents, or not quite two-thirds; but to my mind there were not seventeen dwellings.

In the case of Ruland, 21 Misc. Rep. 505, the dwellings evidently were furnished and ready for occupancy; but here the houses Nos. 192 to 198 (inclusive) Orescent street were unfinished, workmen still in them and no certificate permitting occupancy issued under and in accordance with the charter (§§ 1340-1344). Even if the Ruland case be good law, yet, somewhere in process of construction, a building emerges into a dwelling. Is it when the roof is on, or when inclosed, or when it is completely finished and ready for immediate occupancy?

The latter, I think, must be the determining point if the Ruland case is to govern.

The houses "were not, according to the testimony, ready, November of 1907, for immediate occupancy, and, therefore, not exclusively dwellings occupied as such within the statute.

Taking these out left' thirteen dwellings, of which the defendants have consents for seven, instead of two-thirds, which would be nine.

The petitioner’s prayer is granted and certificate revoked.

Application granted.