The superintendent of buildings had to determine on the safety of relator’s proposed structure. With the deeper wall of the subway less than two feet from relator’s building line, he rightly considered such a ten-story structure as unsafe, unless supported by a foundation of equal depth with the subway. ___
The statutes cited contain directions as to materials, plan and construction, but with other provisions that are left to the judgment of the superintendent of buildings. There is a right of appeal to a board of appeals from his decision. (Greater N. Y. Charter [Laws of 1901, chap.466], §§ 718d,719,as added by Laws of 1916, chap. 503.) When refused a permit, the petitioner exercised that right of appeal, but the board of appeals sustained the superintendent of buildings.
By his opposing affidavit, Mr. Carlin showed that after an investigation and examination of the physical conditions surrounding the said subway walls and the soil and ground upon which the footings and foundations of said proposed new building would be built, he determined that no plan which fails to carry the footings and foundations down to the sub-surface of the subway walls on solid ground can be safely approved for the erection of relator’s proposed building. The subway wall in front is not strong enough to support the adjoining soil, together with the load which such building would superimpose. The soil beneath is not solid, having been disturbed both by 'the underpinning of relator’s present structure, and by the building of these subway walls.
In the superintendent’s opinion the plans, if approved, would create a condition dangerous to the proposed building and to the subway walls along its front.
We are not referred to any provision of the statutes, or ordinances, that declares ten feet to be the maximum depth for a foundation. At least four feet below the surface is mentioned. (Building Code, § 232, subd. 1.)* Where the excavation is more than ten feet, the person causing such excavation, if afforded the necessary license to enter upon the *629adjoining land, and not otherwise, must protect, at his own expense, any wall, building or structure which may be affected thereby. If such license is not accorded or if such excavation is not more than ten feet, the adjoining owner must protect such wall, building or structure. (Building Code, § 230.) (See Cosby’s Code Ord. [Anno. 1917] pp. 89, 91.)
It may well be that relator’s obligation to carry down this foundation for an additional depth of thirteen feet two inches is by reason of the close proximity of the subway. But it was not the province of the superintendent of buildings to pass upon such relative rights, or withhold his judgment because of questions of compensation. Such issues may be for an appropriate civil action between the relator and the city.
While the duty of the proper officer to issue a building permit, where the requirements of the statutes or municipal ordinances have been complied with, has been held to be ministerial, so that mandamus will issue to enforce it, the present situation is where the superintendent has to pass upon the prudence and safety of a construction without a foundation of suitable depth. Such a responsibility is to be regarded as discretionary, and hence will not be controlled by mandamus. Mandamus is to compel action, when plans affording no legitimate ground for objection have been arbitrarily or unreasonably condemned. (Matter of Hartman v. Collins, 106 App. Div. 11.)
The issuance of a permit to erect a building on an insecure foundation might endanger life and property. As the plans filed were open to legitimate objection, appellant’s refusal of a permit cannot, therefore, be said to be arbitrary or unreasonable.
Hence, I recommend to reverse the order granting the application for a peremptory writ of mandamus, with ten dollars costs and disbursements, and to deny the motion, with ten dollars costs.
Jenks, P. J., Thomas, Mills and Rich, JJ., concurred.
Order granting application for peremptory writ of mandamus reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
See Greater N. Y. Charter, § 1556, as amd. by Laws of 1917, chap. 382.— [Rep.