This is a special proceeding by which a writ of peremptory mandamus is sought to compel the superintendent of buildings in the borough of Manhattan, in the city of New York, to remove a roof sign structure therein described.
The material facts appearing in the record are stated in the opinion in the Appellate Division herein, and it is unnecessary to repeat them. (People of the State of New York ex rel.Publicity Leasing Co. v. Ludwig, 172 App. Div. 71.) The expenditures which the appellant Mecca Realty Company alleges that it made before and after February 19, 1914, and prior to the enactment of the ordinance of May 29, 1914, were not such as to give to it or its assignee a vested right to erect, rebuild or alter its existing sign in violation of the ordinance under consideration.
We concur in the opinion of the Appellate Division. We also repeat the language of this court in Southern Leasing Company v. Ludwig (217 N.Y. 100, 104) as follows: "If the superintendent of buildings wrongfully refuses to remove it (the roof sign structure in question), the remedy of mandamus is available to any citizen to hold him to the performance of his duty."
There is no reason for an opinion on this appeal except to say that the prohibition in the ordinance in question is directed against the height and insecurity of the structures prohibited. It does not appear in the ordinance under consideration as in the ordinance in the Wineburgh case (People ex rel. Wineburgh Adv.Co. v. Murphy, 195 N.Y. 126) that it was not enacted in the interest of public safety or to conserve the general welfare or that it is necessarily arbitrary and unauthorized. The ordinance relates to the structure as such. It is confined to structures of the character of those used on which to place signs. It is apparent that the danger to the public in maintaining *Page 543 such a structure is increased as the structure is increased in height. It is also apparent that the structures mentioned in the ordinance whether erected on the ground or upon buildings are likely to become a source of danger to the public if they are inordinately increased in height.
It was said in the Wineburgh case that "The police power, so difficult to define, but so frequently invoked, is confined to such reasonable restrictions and prohibitions as are necessary to guard public health, morals and safety, and to conserve public peace, order and the general welfare. Regulations and ordinances within such general definitions are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of private property. Compensation for such interference with and restriction in the use of property is found in the share that the owner enjoys in the common benefit secured to all." (p. 131.)
The ordinance was not shown to be unreasonable and arbitrary simply because it is possible to build a sign structure as high as the one proposed by the defendant corporation and yet make the same approximately safe. Such a claim could be made in regard to a particular structure of inordinate height.
If the ordinance does not come within the general definition of valid ordinances stated, but is unnecessary and so arbitrary and unreasonable as to violate constitutional property rights, further facts than shown should have been presented to the court by the appellant.
From the facts before us we think that it must be assumed that the board of aldermen adopted the ordinance in good faith pursuant to the police power vested in them and for the purpose of guarding the public safety and conserving the general welfare.
The order should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.
Order affirmed. *Page 544