Tbe motion made to dismiss tbe appeal in this case, on tbe ground of acquiescence in tbe order on tbe part of the appellants, is not well founded. It appears that a stay of proceedings, with a view to
51 *402an appeal, was denied by tbe learned judge wlio granted the order, with leave to renew the application for such stay after the board of examiners should have acted. The respondents were therefore compelled by the writ of mandmius to present the application to that board, and the affidavits show that they did so under protest, insisting, as they now do, that the case was not a proper one for the consideration of that board. Immediately after the action of the board of examiners the application for a stay pending the appeal was renewed and then granted by the learned judge, who, upon granting the same, pronounced an opinion giving his reasons for making the original order, substantially to the effect that ho acted altogether iipon the decision of a previous Special Term which he regarded as binding upon him, and showing that he regarded the question as a doubtful one, proper to be reviewed upon appeal. There is nothing in the proceeding to justify the idea that the appellants have in any manner waived their right to appeal. The motion to dismiss the appeal should therefore be denied.
The questions presented by the appeal arise under section 8 of chapter 547 of the Laws of 1874, and'involve merely the construction of that section. The respondents, as owners of a building on the corner of Fifty-second street and Fifth avenue, in the city of New York, presented their application and filed their plans and specifications in the bureau of insj)ection of buildings in the fire department, for leave to make certain proposed alterations in said building, consisting in part of the erection of two additional stories thereon and raising the building from a four story to a six story one, and the walls from sixty-three feet to eighty-nine feet in height above the curb. The appellants disapproved of so much of the application as related to the raising of the height of said building from four stories to six, and the height of the walls as above stated, on the ground, as is alleged in their answer, that the detailed statement of the plans for the same was not in accordance with the provisions of the laws relating to buildings in the city of New York, and that the granting of the same would conflict with public safety and the public good, and would not be in furtherance of justice.
It seems not to be in dispute that to authorize the erection of the desired additions to the height of the building, would demand a deviation in some respects from the requirements of the statutes *403regulating tbe construction, alteration and repair of buildings in the city. By section 8 of chapter 547 of the Laws of 1874, the department of buildings is clothed with power, under certain limitations, to make such deviations from, and to modify or vary any of the provisions of the act, to meet the requirements of special cases where the same “ do not conflict with the public safety and the public good, so that substantial justice may be done.” The portions of that section material to the question before us, are in the following words: '
“ The department of buildings named under this act shall have full power in passing upon any question relative to the mode, manner of construction, or materials to be used in the erection, alteration or repair of any building in the city of New York, where the same is not specially provided for herein, to make the same conform-to the true intent, meaning and spirit of the several provisions hereof, and shall also have discretionary power, upon application therefor, to modify or vary any of the several provisions of this act to meet the requirements of special cases where the same do not conflict with the public safety and the public good, so that substantial justice may be done ; but no such deviation shall be permitted except a record of the same shall be kept by said department, and a certificate be first issued to the party applying for the same; such certificate shall be issued only upon an application setting forth the facts sworn to by the applicant, and after such application shall have been passed, upon favorably by a board of examiners, consisting of the superintendent of buildings, a member of the examining committee of the New York Chapter of the American Institute of Architects, one of the ex-presidents of the New York Board of Underwriters, and two members of the Mechanics and Traders’ Exchange of said city, one of the latter of whom shall be a master carpenter, and one a master mason, all of whom, except the said superintendent, shall be selected by their respective organizations, and so certified by the proper officers to the said superintendent; no application shall be considered as passed by said board, unless the same receive three affirmative votes.”
The important question presented in the case is whether where the department of buildings on such an application has refused to modify or vary the provisions of the act to meet the requirements *404of a special case, on the ground that to do so would conflict with public safety and the public good, and substantial justice would not be done, the applicant has a right under this section to compel the question thus passed upon by the department to be presented to the hoard of examiners for its consideration, and if that board pass favorably to him, then to compel the department of buildings to make the necessary modification of or variation from the provisions of the act. We think it very clear that no such system of appeal from the decision of the department of buildings was intended to be created.
The section clothes the department with the very extraordinary but doubtless necessary power to meet the exigencies likely to arise in the city in cases where strict compliance with the provisions of the act can be dispensed with without conflicting “with public safety and the public good.” But it imposed upon the exercise of that power certain restrictions, intended tp prevent its abuse. Those restrictions are made by the section conditions precedent to the exercise of the power, so that the department should have power to make the deviations only in cases where those conditions precedent have been first complied with. After conferring the discretionary power upon the department to modify or vary the provisions of the act, the section proceeds as follows :
“ But no such deviation shall be permitted except a record of the same shall be kept by said department, and a certificate be first issued to the party applying for the same. Such certificate shall be issued only on an application setting forth the facts sworn to by the applicant, and after said application shall have been passed upon favorably by a board of examiners.”
This language does not create an appellate tribunal, with power to review and overrule the determination of the department of buildings in refusing to exercise its discretionary power to deviate from the requirements of the statute, on the ground that such deviation would conflict with public safety and the public good; nor does it authorize the board of examiners to interfere to any extent with the decision of the department when ad/oerse to such am application. On the contrary, it requires that the favorable action of the board of examiners shall precede the decision of the department to deviate from the law. The sole pui’pose of these *405provisions is to place upon the power given to the department of buildings to modify, vary and deviate from the requirements contained in the several provisions of the act, even where the department is of opinion that such deviations do not conflict with public safety and the public good and are necessary to substantial justice, the necessity of having the assent to such action, before any step is taken upon it, of the board of examiners created by the section, indicated by at least three affirmative votes, which is a majority of all the members of that board. Bnt there is no provision requiring the assent of the board of examiners, or any action on its part to a refusal of the department of buildings to make such deviation ; nor is there any right of appeal to the board of examiners given from such refusal. In short, the assent of the board of examiners is made necessary to the act of setting aside or varying from the statute, but not to any refusal to do so. ■
The decision of the court below gave an altogether erroneous construction to the section. It appears by the opinion of Mr. Justice Cullen on granting the stay, that the application for the writ was not argued at Special Term, but was granted upon what was supposed to have been a previous decision of that court which he considered as conclusive upon him, though, as he says in his opinion, adverse to his views of the statute. Our construction of the statute agrees with that indicated in the opinion of the learned justice as the true one, and it follows that the order must be reversed and the writ denied, with ten dollars costs of the appeal besides disbursements.
Daniels, J.:From the return made it is evident that the board, having power to modify or vary the provisions of the act from which the relators desired to be relieved, declined to provide for that relief for the reason that to do so would .conflict with the public safety and the public good, and that substantial justice would not be done thei-eby; and the inspector óf buildings also agreed to this conclusion. Whether this should or should not be done was a subject committed to the sound discretion of these officers. They could not favorably exercise that discretion without the preceding action of the board of examiners recommending that course. But as full discretion' *406was vested in them over this subject, even such action would not require them so to exercise it as to make a favorable disposition of the application. They could still determine against it after the board of examiners should recommend its allowance. There is nothing in the act preventing them from denying the application without the action of rhe board of examiners. On the contrary, the power to make such a denial is clearly to be implied from its terms. They cannot modify or vary the act without the favorable action of the board of examiners, and that is the utmost of the restraint placed upon them. Accordingly, if they deem the case an improper one for the exercise of the discretion vested in them, they have the power so to decide at once, as they appear to have done in this case. (Laws 1874, p. 737, § 8.1 After such a decision there can be nothing to be submitted to the board of examiners. Their action can amount to nothing if it should be taken, and a writ of mandamus would be of no possible service to the applicants under the circumstances. The decision made by the respondents was within the range of the discretion given to them. They refused to vary or modify the act, and that refusal must be considered as final. Concurrence is, therefore, given to the opinion of the presiding justice.