Opinion
Argued May 10, 1899
Decided June 6, 1899
John Whalen, Corporation Counsel ( Roger Foster of counsel), for appellant. Charles Frederic Adams and Frederic R. Coudert, Jr., for respondent.
This was a proceeding instituted by the Health Department of the City of New York, acting under the authority claimed to have been conferred by chapter 567 of the Laws of 1895, to obtain a judgment for the condemnation and destruction of certain buildings owned by the defendant Dassori, in the city of New York. Upon the report of a referee, to whom there had been a reference of the issues, finding in favor of the plaintiff, the Special Term adjudged the condemnation of the buildings and appointed commissioners to ascertain the compensation to be paid to the owner. Upon appeal to the Appellate Division of the Supreme Court, the plaintiff's judgment was reversed "upon a question of fact" and a new trial was ordered. In this situation of the case, the question is one of the extent of our power of review. Our review, necessarily, must be confined to the inquiry, whether the evidence was of such a character as to preclude any other determination than that reached by the trial court. There having been a reversal, we are not prohibited by the constitutional limitation of our jurisdiction from entertaining the appeal; but we may be prevented from reviewing the determination or order of the Appellate Division, by reason of its having been warranted by the nature of the evidence. It is a question of law whether a question of fact was presented upon the evidence for the determination of the court and, hence, this court gains jurisdiction of the appeal to review the case to that extent; but, if that review results in ascertaining that there was a question of fact, our right to review ceases and we must dismiss the appeal from the order of reversal, for want of any power to review other questions than those of law. We have repeatedly held to this effect and no further discussion of the subject is needed at this time.
The evidence presented by this record is uncontradicted and a condition of things is shown to exist with respect to the buildings in question, which is, in the highest degree, repulsive and unsanitary; but which, upon the evidence, might not necessarily be regarded as irremediable. Considering the drastic character of the statute, from which the plaintiff derives its right to exercise the power to condemn and to order the removal of buildings, and assuming it to have been a constitutional exercise of legislative power, the evidence should be very conclusive in its nature and if it might reasonably be regarded as failing to establish the essential fact, that destruction was necessary to remedy the evil, which the plaintiff alleges to exist and to be within the purview of the law, then the determination of the Appellate Division was properly exercised. The provision of the statute is that the court shall not act upon the matter "unless proof is made of the necessity of destruction." The evidence was not necessarily conclusive; for it admitted of a different view as to the necessity for destruction than that taken by the trial court. It was fairly inferable that the conditions might be so remedied as to permit of other uses by the owner of the property, if that of human habitation was rendered impossible — a conclusion, under the circumstances disclosed, perhaps not exclusively warranted by the evidence.
There was a question of fact upon the evidence and the order of the Appellate Division is, therefore, beyond our power to review.
As to the question raised by the appellant of the power of the Appellate Division to amend its order of reversal, I think no discussion to be required. The power resided in the court and it is not for us to review its exercise.
The appeal should be dismissed, with costs.
All concur, except PARKER, Ch. J., and BARTLETT, J., not voting.
Appeal dismissed.