People Ex Rel. Kemp v. . D'Oench

18 N.E. 862, 111 N.Y. 359, 19 N.Y. St. Rep. 599, 66 Sickels 359, 1888 N.Y. LEXIS 1023

• Court: New York Court of Appeals
• Decided: November 27, 1888
• Status: Published

Opinion

Earl, J.

It is provided in the act chapter 454 of the Laws of 1885 that “the height of all dwelling houses and of all houses used or intended to be used as dwellings for more than one family ” thereafter to be erected in the city of 27ew York shall not exceed eighty feet in streets and avenues exceeding sixty feet in width.

We have no doubt of the competency of the legislature in the exercise of the police power under the Constitution to pass such an act, and the sole question, therefore, now to be determined is whether the act applies to hotels. We think it does not. In interpreting statutes the words used should receive their ordinary and popular import; and, according to general usage, a dwelling-house is not a hotel .and a hotel is not a.dwelling-house. Sometimes it may be that the word “ dwelling-house ” should, for the purpose of giving the statute its intended effect, and operation embrace hotels. But such an unusual and extended meaning should not be given to the word unless it can be plainly seen that such was the legislative intention. Here we have no reason to suppose that the legislature intended the act should apply to hotels. As simple, private dwelling-houses are rarely, if ever, built eighty feet high, the' main purpose of the act must have been to regulate the height of tenement and apartment houses, which are becoming very numerous in 27ew York, which are usually built in the midst of dwelling-houses and in which several families live and carry on all the operations of housekeeping. There is not the same reason for regulating the height of hotels not usually built in the midst of dwelling-houses, which are mainly occupied by temporary adult guests, which are under the supervision of one management and which can never become very numerous. While stores, factories, warehouses, buildings for offices and numerous other buildings may be erected without any restriction as to height we can see no reason to suppose that the language used in this act was meant to embrace hotels, nearly all of which in the city of New York have for many years been erected of greater height than the limit prescribed in the act.

The orders of the Special and General Terms should, therefore, be reversed, and a peremptory writ of mcmdmrms issued without costs.

All concur.

Ordered accordingly.