(dissenting):
The appellant is the owner of a building known as No. 29 West Thirteenth street in this city, which is twenty-five feet in width, one hundred and three feet in depth and forty feet in length, the outer walls being of brick, stone and iron. Designing to alter it by raising it, he submitted to the superintendent of buildings specifications and plans for the proposed alterations, by which it appeared that he did not intend to make the additional structure fire-proof, as provided by the laws on that subject, and the superintendent, therefore, disapproved of the project. Subsequently the appellant presented a petition on the subject to the board of examiners, in accordance with and by authority of the act of 1885 (chap. 456, § 31), and that board granted the petition. It was asserted in the petition that the provisions of law relating to such alterations did not aj>ply, and that an equally good and desirable form of construction could be and was proposed to be employed by him, as shown in the application. (Schedule B.”) This was done in order to meet one of the emergencies anticipated by the section mentioned, and which expressly provides for such a procedure, authorizing the board *44to grant tlie petition, notwithstanding the apparent departure from a strict compliance with the law, when it appears either that its provisions do not apply to the particular case or an equally good and desirable form of construction can and is to be employed.
The learned justice in the court below, however, refused to grant a mandamus to compel the superintendent of buildings to issue a certificate enabling him to avail himself of the action of the board of examiners in his behalf, and hence this appeal. He seems to have been controlled in his judgment by the requirements as to fireproof construction and the assumed absence of any offer of an equally good form of construction as to that element of the application, and said, substantially, that reasons were given in aid of the superintendent’s refusal to approve.
In this he seems to have been in error, inasmuch as it is distincty alleged in the petition that an equally good form of construction was proposed, as shown in the application, referring to schedule “ B,” which does not appear in the papers, unless the application designated “ I) ” is the one intended. The board, however, having passed upon the petition, with the proposed plan before it and it must be assumed after due consideration of its fitness, has this court the power to reverse its action. It is thought not, inasmuch as the section declares that it shall be final. The object of creating the board, and of permitting a departure from the strict letter of the law was to invoke the judgment of competent persons upon the proposed departure, whose experience and capacity thus secured and employed, would insure the public safety notwithstanding the permission given ; and it must be assumed that the legislature contemplated structures which should be allowed to avoid the injustice or hardship which might ensue if the laws were rigorously applied. It was evidently intended, also, that the decision of the board should be final, not only because it is so expressly declared, but in order to make the proceeding summary, and thus prevent delay in the consummation of the enterprise contemplated. Doubtless this court, if it had the power, would, on the papers presented by the record, have withheld its approval, if the application had been presented here in the first instance, the provisions as to fire-proof constructions commending themselves as valuable, wise, protective and important, and rarely to be departed from, but the legislature *45have given to others the authority invoked by the appellant, and successfully.
For these reasons, treating the question considered as one of power, it is thought the order appealed from should be reversed and a mandamus ordered. No costs are, however, given to either party of this appeal.
Order affirmed, with costs.