By this Court.
Daly, F. J.The twentieth section of the Act of 1819 (Laws of 18-19, p. 121), declares that no wooden or frame "building, whether the same may have a brick front or otherwise, within the fire limits, shall be raised, enlarged, or built upon, provided, however, that brick front frame dwelling bouses, and wooden dwelling houses only, may be raised under the circumstances and in the manner specially provided for in the fourteenth section of the Act. The fourteenth section enacts that if any brick front frame, or wooden dwelling house already erected within the fire limits, shall require new roofing, it may be lawful for the proprietor to raise the same for the purpose of making a flat roof thereon, provided such new roofing be made of copper, slate, tin, zinc or iron; and provided such dwelling house, when so raised, shall not exceed thirty-five feet in height from the level of the side walk to the peak, or highest part thereof.
The building in question, which was of wood, with a brick front on Pearl street, and a brick front on Chatham street, as far up as the first story, had been erected as a dwelling house before the passage of the Act.. The defendant was the lessee of the second and upper stories, and at the time when he made the alteration, which is claimed to have been a violation of the act, the roof was rotten down to the gutter, and the building required a new roof. The first and second stories had been occupied for fifteen years previously for a cloth "store; and the attic contained three bed-rooms, lathed and plastered, with chimney-piece and closet, in which the clerks of the former occupants slept. The defendant leased the upper part of the premises on the i'ith of February,-1853, and before the May following he made the alteration in question. He carried up the front brick wall on Pearl street to the height" of the peak of the old roof, and the wall" on Chatham street to corres*394pond, which lie built of wood, and then put on a flat roof of zinc, the highest part of which did not exceed thirty-five feet from the level of the sidewalk, by this means changing the attic into a third story. In making the alteration, the original ceilings were taken down, and the bed-rooms and partitions were removed. The defendant occupied part of the ground floor and the upper stories as a furniture store; the remaining part of the ground floor being occupied as a liquor store, and the basement as a restaurant. A portion of the building was occupied by a daguerreotvpist, who slept in the part used by him, and the servants of the keeper of the restaurant slept there.
The building, when the act was passed, and when the alteration was made, must, I think, be regarded as a dwelling house. According to the testimony, it was originally constructed, and arranged to be used as a dwelling house, and the fact that a part of it, or the principal part of it, was used ás a store, did not make it less a house of that description. A dwelling house is one designed to he occupied as a place of abode by night as well as by day, and which is constructed with especial reference to that object, and as long as it is capable of being so used, in whole or in part, it retains its specific character. A building erected for a store or warehouse does not become a dwelling house, though a place may be fitted up in it for persons to sleep in ; nor does one originally erected as a dwelling house, cease to he such, though a part of it has been converted into a store.
The building, before the improvement was made, was, in my judgment, a dwelling house, and if it were, the only question that can arise, is, whether the defendant did anything more than is permitted by the Act in the case of houses of that description. I think he did not. The act authorizes the raising of the roof for the purpose of making a flat one, where the building requires new roofing, and by thus allowing the roof to be raised and made flat, the act contemplates- exactly what was done in this case, the addition of another story by the raising and flattening of the roof. The building required a new roof; it was raised .no higher than the limit prescribed by. the Act, nnd the roof was made of a material allowed by the Act. T/hat the effect of the alteration may be in the future use of *395the building isiinmaterial. It is sufficient that tlie statute allows the alteration to be made, if made in the mode prescribed. It imposes no limitation or restriction except what is stated, and if the proprietor, in raising and flattening the roof, thinks fit to convert the former attic from a collection of sleeping ■ apartments into a single room to be used thereafter as a ware-room, there is nothing in the act restraining him from so doing. The argument of the Counsel of the Fire Department is that the effect of the alteration was to convert the.whole building into a store, the ground floor and second story having been previously used for such a purpose. This was scarcely so, as the servants of the restaurant slept in the basement, in a room built in the basement for that purpose. But if such were the effect, it would make no difference. The only question that can arise, is whether it was a dwelling house already erected when the Act was passed, and if it was, whether the alteration was such as . the Act permitted. This statute imposes very heavy penalties for the violation of its provisions (Amended Act, Laws of 1857, p. 73, § 3), and it should not be extended beyond what is "plainly expressed or manifestly intended. It should, in every case where it is alleged to be a violation of the statute, clearly appear that the alteration or enlargement mac\e was distinctly prohibited; and this is not, in my judgment, such a case.
Hiltox, J., concurred.
Beady, J., dissented.
Judgment reversed; new trial ordered; costs to abide event.