Silver v. Riegelmann

187 A.D. 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1919
• Status: Published

Opinion

It is not necessary to decide whether city officials who have refused a building permit could in any circumstances be enjoined in equity from interference with a projected building. (People ex rel. Namm v. Carlin, 182 App. Div. 626.) Here the complaint was based on the Special Term order of May twenty-ninth, granting a peremptory mandamus to the superintendent of buildings, directing him to issue such a permit. But on the face of this complaint it appeared that by an appeal under section 1314 of the Code of Civil Procedure, such order had been stayed and superseded. To sue for an injunction and damages based on such superseded order, pending such appeal therefrom, would in effect nullify the statute provision for a stay. The order denying defendants’ motion for judgment on the pleadings is, therefore, reversed, with ten dollars costs and disbursements, and defendants’ motion granted, with ten dollars costs. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concurred.