I cannot concur with Mr. Justice Brady in the conclusion to which he has arrived upon this appeal. The construction put upon the building act in his -opinion seems to me to render nugatory *39some of its most positive provisions. Section, 492 of the consolidation act (chap. 410 of 1882), as amended by chapter 456 of 1885, section 21, provides that “Every building hereafter erected (for which plans have not been heretofore filed), the height of which exceeds seventy feet, shall be built fire-proof.” Then follow provisions regulating the use, composition and perfection of manufacture of metal columns, of brick arches, and other material to be used in the construction of su ch fire-proof building. Then follows section 498, which provides as follows: “No building already erected or hereafter to be built in said city shall be enlarged, raised, altered or built upon in such manner that were such buildings wholly built or constructed after the passage of this act it would be in violation of any of the provisions of this title.”
The effect of these provisions seems to be that no building' erected before the passage of this act can be raised beyond the height of seventy feet without the same is made fire-proof. The building in the case at bar has never been raised above forty feet in height, but upon either side have been constructed buildings having party walls of the height of eighty-five feet, which were constructed at joint expense upon the land of the relator and his neighbors, and the relator proposes to raise his buildings to the height of eighty-three feet. Applying the provisions of section 498, if such addition is made it must be fire-proof. "We are then brought to the question as to whether there is any provision in the act referred to, in pursuance of which the right of the law as to the fire-proof character of future constructions exceeding seventy feet in height can be abated. Section 504 provides that the superintendent of buildings shall have power to vary or modify the provisions of this title, upon application therefor in writing, only in case of alteration of old buildings where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, the public safety secured and substantial justice done.
This portion of this section seems to confer upon the superintendent of buildings in the case of the alteration of old buildings, and in such a case only, authority to vary or modify the provisions of this title where such variation or modification does not contravene the spirit of the law or endanger the public safety, arid is consistent *40with public justice. But the superintendent of buildings cannot permit these variations or modifications solely guided by his own judgment. Before the superintendent can permit these modifications he must get the approval of a board of examiners, constituted as the law directs, to the proposed modifications. The act says. “ But no such deviation shall be permitted except a record of the same shall be kept by said superintendent of buildings, and a certificate be first issued to the party applying for the same; such certificate shall not be issued until a board of examiners (here follows the provisions as to the composition of the board of examiners) shall also approve the proposed modifications of the law.” This makes a complete system in respect to old buildings which it is desired to raise to a height above seventy feet. Neither the board of examiners alone nor the superintendent of buildings alone can waive any of the provisions of the law; both the board and the superintendent must concur in the opinion that the proposed modification is consonant with the spirit of the law, and does not endanger the public safety, before the stringent provisions of the law can be waived. Either may put a veto upon the issuance of such a certificate. The legislature did not intend that this extraordinary power should be used unless grave necessity require it.
These provisions seem to be a complete system having relation to the alteration of old buildings, and to apply directly to the case of the relator. Iiis application was to be permitted to “ alter an old building” by raising it from forty feet to eighty-three feet in height. It involved “ the use of party-walls belonging to different owners,” and the claim was that there were “practical difficulties in the way of carrying out the strict letter of the law.” But it is said that the legislature meant nothing by the foregoing provisions, and that in any case the board of examiners may alone authorize the issuance of the certificate if the applicant only says in his petition that the provisions of this rule do not directly apply.
The language upon which this extraordinary claim is founded is as follows: “ In cases in which it is claimed by' an owner, in person, or by his representative, that the provisions of this title do not directly apply, or that an equally good or more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present *41a petition to the board of examiners, and may appear before said board and be heard ; and said board shall consider such petition in its regular order of business, and as soon as practicable render a decision thereon. The said board of examiners are hereby authorized and empowered to grant or reject such petition, and their decision shall be final. If such decision is favorable to said petitioner a certificate shall be issued -by the superintendent of buildings in accordance therewith.”
It will be seen that, if the language is construed literally, the claim, extraordinary as it appears, is well founded. The statute does say, in so many words, that all that is necessary to avoid the veto power, so carefully given to the superintendent of buildings, in respect to modifications of the law, so far as it affects alterations in old buildings is for the owner to claim in his petition that the provisions of the law do not directly apply to his case and that then all the barriers so carefully erected by the legislature against modifications have been successfully evaded and the board of examiners are all powerful and utterly independent of the superin tednent of buildings. It is, however, a well settled rule in the construction of statutes that the legislative intent must govern even where such construction seems to run counter to the letter of the law.
In People ex rel. Wood v. Lacombe (99 N. Y., 43 at page 49) the court says : “ In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is wdthin the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation ; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers. These general rules are upheld by numerous authorities. (People ex *42rel. Twenty-third Street R. R. Co. v. Commissioners of Taxes, 95 N. Y., 558; Burch v. Newbury, 10 id., 389; Oswego Starch Factory v. Dollaway, 21 id., 461; People v. N. Y. C. R. R. Co., 13 id., 78; Donaldson v. Wood, 22 Wend., 397; Watervliet Turnpike Co. v. McKean, 6 Hill, 619, 3 Bingham’s R., 193; Commonwealth v. Kimball, 23 Pick., 370.)
In the case quoted from the court, applying the rule stated, held that the legislature’s declaration that the act in question should take effect “ January 1, 1885,” should be read as if it said “ January 1, 1885, at twelve o’clock, noon.” (See 99 N. Y., 54.) In Burch v. Newbury (supra) the words “first day of July” were read as “first Monday of July.”
In People ex rel. Twenty-third Street Railroad Company v. Commissioners (supra), and Oswego Starch Factory v. Dollaway (supra), the Court of Appeals rejected the literal words and interpretation of the acts relating to the taxation of corporations and rejected their specific requirements, because otherwise the intent of the legislature to subject them to taxation on the actual value of their capital would be defeated.
The legislature could never have intended to stultify itself by providing in the act in question that all that it was necessary to do to evade the law is to have the owner say that the law does not apply, and therefore the inquiry arises, what did the legislature mean. It seems to me that they did not in any manner intend to interfere with the provisions in respect to alterations of old buildings ; that all that was intended was to give the board of examiners, in cases to which the law did not apply, and in those cases to which the law did apply but a form of construction varying from the one required in the act was proposed, which, in their judgment, was equally good and more desirable from the peculiar circumstances of the case; but being also fire proof, that being an absolute requirement, the power to authorize the issuance of a certificate, although it was not proposed to comply with the strict letter of the law.
This construction gives full force and effect to all the provisions of the statute and relieves the statute of its seeming incongruities But it is claimed that the statute says that the decision of the board of examiners shall be final; that they are to be the sole judges as to whether the statute applies or not, as well as sole judges as to *43whether an equally good or more desirable form of construction is proposed. It is true that the action of the board may be final in these cases in which they acquire jurisdiction, but the legislature certainly did not intend that simply because an owner may state in his petition that the law does not apply, when it is perfectly clear that it does, that the board of examiners can repeal the whole building law and cause to be issued a certificate; which seems to 'me to be the claim of the appellant in the case at bar. Duo force can be given to every part of the statute without conferring such extraordinary powers, which powers are utterly inconsistent with other parts of the act and operate virtually to give the board of examiners the power to repeal all the provisions of the building law. It seems to me, therefore, that the building, and proposed alteration thereto' of the relator, comes directly within the provisions of the building law relating to the alteration of old buildings, and that no certificate can issue without the concurrent action of the superintendent and board of examiners.
The order appealed from should be affirmed, with costs.