Frieda Umberg, Respondent, v. Morris Neinken and Joseph Socolof, Appellants

Frieda Umberg, Respondent, v. Morris Neinken and Joseph Socolof, Appellants. Second Department, October 16, 1908. Real property — vendor and purchaser—compliance with Tenement House Act by vendor — when hallway fulfills requirements of statute. A vendee of lands cannot refuse title upon the ground that the plans and specifications of alterations which the landlord agreed to make were not filed with and approved by the tenement house department of the city of Hew York as required by section 131 of the Tenement House Act, if in fact the alteration as actually made fulfilled the requirements of said act. An entrance hall to a tenement house three feet five inches wide from the stair inclosure to a rear entrance fifteen feet distant complies with section 30 of the Tenement House Act, requiring such hallways beyond the stair inclosure to be at least three feet wide in the clear, even though a chimney place four feet wide projects one foot from the side wall. Appeal by the defendants, Morris Neinken and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of March, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 13th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes. The action was by the vendee to recover the sum paid by her to the vendors on a contract for the purchase of real estate. The contract contained the following clause: “ It is expressly agreed by the sellers, that they will make the following alterations to the within premises, prior to the taking of the title, to wit: — “ To rip out a part of the kitchen of the ground floor apartment, and thereby extend the passage way- of the present hall on the ground floor, to the end of the front building, leading towards the entrance of the yard through said hall; to plaster, paper and paint ¿very part that will be ripped out in making said alteration; to readjust the range in. the kitchen where such repair will be made, and to reconnect any fixtures that will thereby be removed, and otherwise complete same in every respect.” Jacob V. Kahn [A. lincoln Bernstein with him on the brief], for the appellants. Henry Hetkin, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff refused "to take title on the grounds (1) that the defendant made the- alteration he was required to make by the contract without first filing the plans and specifications therefor with the Tenement House Department of the City of Hew York,- and getting the approval thereof by such department, as required by section 121 of the Tenement House Act; • and (2) that said alteration was not made in accordance with the' requirements of section 20 of the said act. If the second objection be not true, the first is not good, for if the work was done in the' way required by the said act, the failure to have the plans and specifications for it filed and approved in advance would be unsubstantial. It is the following provision of section 20 which is claimed not to have been complied with in the manner of doing the work, viz.: “ Every entrance hall in a tenement house hereafter erected sliall be at least three feet six inches wide in the clear, from the entrance up to and including the stair enclosure, and beyond this point at least three feet wide in the clear.” The house was 60 feet deep.- The hall, which was along the side wall, was 45 feet deep and 5 feet 7 inches wide. The rear end of it ran up’ against the kitchen, which extended over to the side wall. The agreement in the contract was to rip out that side of the kitchen and extend the- hall all the way to the rear of the building so as to have entrance to the back yard. If this rear hall is an “entrance hall”, or part.of the “entrance hall”, i. e., the front “ entrance hall”, referred to by section 20, which is now said, it was built in compliance with section 20. The objection is that it is not three feet wide as required by the said 'section. It is in fact 3 feet 5 inches wide for its whole, length of 15 feet, except that a chimney breast about four feet wide, or the sides thereof, extends into it from the side wall between 11 and 12. inches. The act does not intend that halls may not have mantels or chimneys, or the like, of the ordinary kind, in them. They of course might be so long and wide, and take up so large a proportion of the length and width of the hall, that the hall as a whole could not be said to be three feet wide, but that is not the case here. It is wider than that, with the minor exception of the chimney. The judgment should be reversed. Woodward, Jenks, Hooker and Miller, JJ., concurred. Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.