App. Div.]

Second Department, October, 1911.

requesting the return of the memorandum was not for the purpose of repudiating the agreement, but to explain the presence of the two bonds. The contract provided for $2,000,"invested or otherwise," and decedent made provision for the fulfilling of this contract by leaving the two railroad bonds with the agreement addressed to Miss Smith. There is no good reason why this contract should be nullified for the benefit of a residuary legatee who does not appear to have a better claim upon the decedent than that held by Miss Smith, and the decree of the surrogate should be affirmed.

The decree of the Surrogate's Court of Queens county should be affirmed, with costs.

JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred.

Decree of the Surrogate's Court of Queens county affirmed, with costs.

In the Matter of the Application of ROBERT J. COADY and JAMES A. HEALY, Appellants, for an Order Directing JOHN THATCHER, as Superintendent of Buildings for the Borough of Brooklyn, Respondent, to Issue a Permit for the Erection of Certain Buildings on the Land of the Applicants.

Second Department, October 20, 1911.

Eminent domain -- condemnation - New York city - when title vests - buildings unlawfully erected mandamus approval of plans by superintendent of buildings.

In order that the title to lands in New York city taken in condemnation proceedings may not vest in the city, pursuant to section 990 of the charter, as soon as the commissioners of estimate and assessment qualify, the buildings thereon must have been lawfully erected. Where, in violation of the Building Code, structures have been erected on land without the approval of the plans by the superintendent of buildings of the borough and a proceeding is later instituted to condemn the land, title thereto vests in the city as soon as the commissioners of estimate and assessment qualify.

After title has vested in the city, the lessees of such premises cannot by mandamus compel the superintendent of buildings to approve the plans. Mandamus is only designed to compel the granting of lawful rights which have been improperly denied.

Second Department, October, 1911.

[Vol. 146.

APPEAL by the applicants, Robert J. Coady and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of June, 1911, denying a motion for a peremptory writ of mandamus.

James E. Doherty, for the appellants.

William T. Kennedy [John P. O'Brien and Archibald R. Watson with him on the brief], for the respondent.

WOODWARD, J.:

The applicants in this proceeding for an order directing John Thatcher, as superintendent of buildings for the borough of Brooklyn, to approve of certain plans filed in his office on or about the 13th day of May, 1911, were the lessees of the premises in question. The application was duly filed on the date above mentioned, and asked for the approval of the plans of five bungalows. Prior to the filing of this application, and on the 4th day of May, 1911, the board of estimate and apportionment adopted a resolution in the following language:

66

Resolved, That the Board of Estimate and Apportionment of the City of New York, in pursuance of the provisions of section 990 of the Greater New York Charter, directs that upon the date the Commissioners of Estimate and Assessment, appointed in the aforesaid proceedings, file their oaths, the title in fee to each and every piece or parcel of land lying within the lines of said West Twenty-fifth Street, from Surf Avenue to a line distant about 260 feet southerly from and parallel therewith, and comprising all of Damage Parcels Nos. 89 and 90, in the Borough of Brooklyn, City of New York, so acquired shall be vested in the City of New York."

The lands embraced in these two damage parcels constitute the premises involved in this proceeding, and it appears that the applicants had, prior to making the application here involved, constructed the bungalows, and while the application was in form one to approve of the plans for buildings to be constructed, it was, in fact, an application for the approval of plans for buildings which had already been constructed in disregard of the provisions of section 4 of the building code of

App. Div.]

Second Department, October, 1911.

the city of New York. The application of May thirteenth was not acted upon because of certain defects in the description of the premises, but it appears that upon the 26th day of May, 1911, the objections raised by the building department had been met, and that it was expected that a permit would be given on the following day. In the meantime, and on the 26th day of May, 1911, the commissioners of estimate and assessment were duly appointed, and on the following day the said commissioners took their qualifying oaths, and, under the terms of the resolution of the board of estimate and apportionment of May 4, 1911, the title to the property vested in the city of New York, and the department of buildings declined to issue the permit for the construction of the buildings.

By the terms of section 990 of the charter of Greater New York (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658), if the premises had no buildings upon them at the time that the commissioners of estimate and assessment became qualified, the title vested in the city of New York; no one questioned this, but it is urged on the part of the applicants that there were buildings upon the premises and that title could not vest until after the expiration of six months, and that it was the duty of the department of buildings to issue the permit. There is no doubt that there were certain buildings upon the premises in question, but it is equally certain that these buildings had been constructed in violation of the provisions of the building code of the city of New York, and if the applicants are now permitted by a writ of mandamus to compel the superintendent of buildings to approve of the plans, thus giving legal recogtion to the existence of these buildings, it would operate to permit them to take advantage of their own wrongful act and to impose an added burden upon the public. We think there is a failure to show such a legal right to the relief demanded, and that the learned court at Special Term was fully justified in denying the extraordinary relief of a writ of mandamus. The statute, we believe, demands that the buildings erected upon the premises shall be buildings lawfully erected in order to exempt them from the provision relied upon by the city of New York as vesting title immediately, and the applicants, having elected to construct buildings without com

Second Department, October, 1911.

[Vol. 146.

plying with the provisions of law designed for the preservation of the general welfare of the community, cannot be permitted to have the protection of remedies designed only for the compelling of lawful rights improperly denied.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

JENKS, P. J., BURR, CARR and RICH, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.

SAMUEL DEUTSCH, Respondent, v. E. M. UPTON COLD STORAGE COMPANY, Appellant.

Second Department, October 20, 1911.

Practice-change of venue to county where cause of action arose. Where on a motion for a change of venue in an action for damages for negligence in improperly storing celery in a cold storage warehouse the number of material witnesses on each side is about equal, the trial should be had in the county in which the cause of action arose and in which the warehouse is located.

The convenience of witnesses who are employees of the party intending to call them should be considered on the motion as much as the convenience of other witnesses.

APPEAL by the defendant, the E. M. Upton Cold Storage Company, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 27th day of March, 1911.

Merton E. Lewis, for the appellant.

Robert H. Barnett [S. Edmund Sladkus with him on the brief], for the respondent.

RICH, J.:

This appeal is from an order of the Special Term denying a motion to change the place of trial of the action from Orange county to Monroe county, for the convenience of witnesses, and to promote the ends of justice. The action is to recover damages for the alleged negligence of the defendant in storing a quantity of celery in its cold storage warehouse. The answer

App. Div.]

Second Department, October, 1911.

denies negligence and alleges that at the time the celery was delivered to the defendant for storage it was frozen and in poor condition; that when it was redelivered to the plaintiff it was in as good condition as when received, and that it was then inspected by plaintiff and accepted.

The plaintiff is a resident of the county of Orange and is engaged in the purchase and sale of celery in the borough of Manhattan, New York city. The defendant is a domestic corporation engaged in the business of cold storage for hire in the city of Rochester, Monroe county. The contract for storage was made in Monroe county; the celery was delivered to the defendant in that county, and the celery was redelivered to plaintiff in Monroe county. It appears that the defendant will call several material witnesses on the trial of the action who reside in Monroe county, and that the plaintiff will call about the same number of persons as witnesses who do not reside in the county of Monroe. Under such circumstances I think this court is committed to the rule that the trial should be had in the county in which the alleged cause of action arose. (Pinkus v. United Cloak & Suit Co., 124 App. Div. 535.) In addition to this, it is made to appear that the defendant cannot try this action in Orange county without serious injury to its business, and this fact must not be overlooked in the determination of the question presented. It is urged that some of the witnesses the defendant proposes to call are its employees, and that their convenience should not be considered in determining this motion. There is no direct proof supporting this contention, but conceding it to be true, I know of no rule that the convenience of necessary and material witnesses for a party, who are his employees, should not be considered in determining an application of this character.

It follows that the order must be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial from Orange to Monroe county granted, with ten dollars costs.

JENKS, P. J., BURR, CARR and WOODWARD, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.