earth wherever the same shall have been removed, loosened or disturbed, under or around them, so that such pipes shall be well and substantially supported; and if such person or persons shall fail to sustain, secure and protect said pipes from injury, or to replace and pack the earth under or around them, as by the provisions of this section required, then the same may be done by the company to whom the same may belong, and the cost thereof, and all damages sustained by either of said companies thereby, shall be paid by said person or persons to said company; and the said company may, in default thereof, maintain an action against him or them therefor. (Id., sec. 315.)

§ 167. The provisions of the last preceding section shall be made part and a condition of every permit that shall hereafter be granted to any person or persons for making any excavation for the construction, alteration or repairing any vault, waste pipe or drain in any street in which the pipes of either of the said companies shall be laid at the time of granting said permits; provided said company or either of them provide such permits or pay a just proportion therefor. (Id., sec. 316.)

§ 168. No connection with or opening into any sewer or drain shall be used for the conveyance or discharge into said sewer or drain of steam or hot water above one hundred degrees Fahrenheit from any boiler or engine, or from any manufactory or building in which steam is either used or generated, or to discharge or permit to escape into any sewer or drain, or into any public street, steam from any stop cock, valve or other opening in any steam pipe or main, under the penalty of $50 for each and every day during any part of which such connection or opening may have been used for that purpose; and the Borough President having jurisdiction of said street or sewer is hereby authorized and directed, upon the expiration of five days after notice to discontinue the discharge of steam or hot water from any connection to cancel the permit, and to close up and remove the same if such discharge of steam or hot water from such connection shall not have been discontinued. This penalty shall be imposed upon and recovered from the owner and occupants severally and respectively of such manufactory or building, or from any corporation having mains for the conveyance of steam or hot water in the streets, avenues or public places. (Id., sec. 317, with verbal changes.)

Article VI.-Vaults, Cisterns and Areas.

§ 169. The presidents of the respective boroughs, on application for that purpose, are empowered to give permission to construct any vaults or cisterns in the streets within their respective territories, provided, in the opinion of the Borough President granting such permit, no injury will come to the public thereby. (R. O. 1897, sec. 318, with verbal changes.)

Where a vault or cellar has existed for thirty years there is a presumption that it is with the consent of the municipal authori

ties. People ex rel. Zeigler vs. Collis, 17 App. Div. 448; and this is true of a vault existing for nine years to the extent that it is not considered a nuisance per se, Babbage vs. Powers, 130 N. Y. 281. This is merely a presumption, however. Deshong vs. City of New York, 176 N. Y. 475. A permit may be revoked by the city. Lincoln Safe Dep. Co. vs. City N. Y., 96 App. Div. 318.

§ 170. No person shall cause or procure any vault or cistern to be constructed or made in any of the streets of The City of New York, without the written permission of the Borough President having jurisdiction thereof, under the penalty of $100, to be sued for and recovered from such person and the master builder or person who made the same, severally and respectively. (Id., sec. 319, with verbal changes.)

The City of New York has the power to regulate and authorize vaults, cellars, steps, etc., for the greater convenience of its citizens. See Jorgensen vs. Squires, 144 N. Y. 281; McMillan vs. Klaw & Erlanger, 107 App. Div. 407. And where a vault has existed since 1876 without a permit, held, where it was being rebuilt, the city could compel being paid for space used since no permit could be proved, and no right of prescription exists as against the public. Deshong vs. City of New York, 74 App. Div. 234; affirmed, 176 N. Y. 475. Where, by special statute, an area space in a tenement was covered over, held not to be a vault within meaning of ordinance. Buek vs. Collis, 17 App. Div. 465. The charter amendments make this inapplicable now. City of New York vs. Madison Ave. Real Est. Co., 42 Misc. Rep. 535. But a vault erected without permission in a dangerous condition must be allowed to be repaired without first taking out a permit. People vs. Collis, 17 App. Div. 448. These vault permits have been issued since May, 1857. Deshong vs. City, supra. As to what constitutes a "vault," see City of New York vs. Buek, 43 Misc. 663. Where a permit was paid under threat of arrest, held payment was voluntary, and could not be recovered from the city. Wolff vs. City of New York, 92 App. Div. 449.

§ 171. Every application for permission to erect such vault or cistern shall be in writing, signed by the person making the same, and shall state the number of square feet of ground which is required for the same, and the intended length and width of the same. (Id., sec. 320.)

§ 172. After obtaining permission to construct or make such vault or cistern, and previous to the commencement thereof, the person so applying shall forthwith pay to the Borough President granting the permit therefor such sum as he shall certify in the said permission to be a just compensation to the city for such privilege, calculated at the rate of not less than 30 cents, nor more than $2 per foot, for each square foot of ground mentioned as required for such vault or cistern, under the penalty of $100. (Id., sec. 321, with verbal changes.)

§ 173. No person shall erect or build, or cause or permit any vault or cistern to be made which shall extend further than the line of the sidewalk or curbstone of any street under the penalty of $100. (Id., sec. 322.)

§ 174. It shall be the duty of every person for whom any vault or cistern may be in process of construction to procure the same to be measured by one of the City Surveyors, and to deliver to the Borough President granting the permit therefor a certificate of the said measurement, signed by

such surveyor, before the arching of such vault or cistern shall be commenced, under the penalty of $100. (Id., sec. 323, with verbal changes.)

§ 175. If it shall appear by such certificate or otherwise that such vault or cistern occupies a greater number of square feet than shall have been paid for as aforesaid, the owner of such vault or cistern, and the master builder by whom or under whose direction such vault or cistern shall be constructed, shall in addition to the penalty imposed by this article, severally and respectively forfeit and pay twice the sum previously paid for each square foot of ground occupied by such vault or cistern over and above the number of square feet paid as aforesaid. (Id., sec. 324.)

§ 176. All vaults or cisterns shall be constructed of brick or stone, and the outward side of the grating or opening into the street shall be either within 12 inches of the outside of the curbstone of the sidewalk or within 12 inches of the coping of the area in front of the house to which such vault shall belong, under the penalty of $100, to be paid by the owner or person making or causing the same to be made. (Id., sec. 325.)

§ 177. All grates of vaults shall be made of iron, the bars whereof shall be three-fourths of an inch wide and one-half of an inch thick, and not more than three-quarters of an inch apart, under the penalty of $25, to be paid by the owner of the vault or occupant of the house to which the same shall belong, severally and respectively. (Id., sec. 326.) § 178. Every owner or occupant of any house or lot of ground within the paved parts of The City of New York, before which any vault, pit, hole, cistern or well shall be made, and every person making or having charge of such vault, pit, hole, cistern or well, shall, during the whole of every night while such vault, pit, hole, cistern or well shall be opened or uncovered, cause a lighted lamp or lantern to be placed and kept at some convenient spot, so as to cast its light upon such vault, pit, hole, cistern or well, under penalty of $10. (Id., sec. 327.)

§ 179. All vaults and cisterns shall be completed and the ground closed over them within three weeks after they are commenced, under the penalty of $5 for every day thereafter during which the same shall remain uninclosed, to be recovered from the owner or builder of the same, severally and respectively. (Id., sec. 328.)

§ 180. No area in the front of any building in The City of New York shall extend more than one-fifteenth part of the width of any street, nor in any case more than 5 feet, measuring from the inner wall of such area to the building; nor shall the railing of such area be placed more than 6 inches from the inside of the coping on the wall of such area, under the penalty of $100, to be recovered from the owner and builder thereof, severally and respectively. (Id., sec. 329.)

The penalty was cut down from 250 to 100 dollars in 1896. This section has been in force since at least 1821. (See Laws of City of

up to

N. Y. 1821, p. 29.) As originally used the ordinance expressly said "no areas below the surface of any street," and since then the area sections have always been included in the article on vaults. This is important to bear in mind, as the style of construction has changed so much since the word was first used. The tendency of the public has been to assume there was an "area line " which point much latitude in building was shown. Areas must not be confused with court-yards, however, which are not and never were permitted except under special circumstances. In the earlier days it was customary to grant to certain streets and avenues, by special ordinance, the right to enclose a court-yard in front of the abutting houses with light iron railings. But such court-yards were held to be illegal and the ordinances void in Lawrence vs. Mayor, etc., of N. Y., 2 Barb. 577 (1848). It was under these circumstances, that the court-yards were constructed in Fifth avenue, 42d street, 34th street, 23d street, etc. For example, as to Fifth avenue, between 23d street and 42d street, see ordinance passed September 30, 1844, and earlier ones. The permission, however, was revocable. The change of those streets from residential to business, as well as the growth of the city, have made the local conditions entirely different. That a reasonable encroachment on a public street is lawful for use as an area, was sustained in City of Chicago vs. Robbins, 67 U. S. 418. Where The City of New York sought a preliminary mandatory injunction to compel the removal of steps extending fifteen feet on Fifth avenue and of an area extending fourteen feet on 34th street, denied. City of New York vs. Knickerbocker Trust Co., 41 Misc. 17. But that a good cause of action was alleged in the complaint sustained in same case. Scott, J., N. Y. Law Journal, Dec. 29, 1903; aff. in 104 App. Div. 223. And where an owner sought to restrain the municipal authorities from removing a porte-cochere extending out fifteen feet to the so-called area line on Fifth avenue, application denied. George W. Vanderbilt vs. City of New York, Blanchard, J., N. Y. Law Journal, June 25, 1903. Also, see City N. Y. vs. Knickerbocker Trust Co., O'Gorman, J., N. Y. Law Journal, June 1, 1906.

For Broadway, see notes, section 181.

An area built as prescribed by the ordinances is legal and must be maintained by the owner in the manner prescribed as long as it lasts. Devine vs. Nat. Wall Paper Co., 95 App. Div. 194.

§ 181. No areas, steps, courtyards or other projections, except show windows, not exceeding 18 inches in width, and signs not projecting more than 12 inches from the house line, shall hereafter be built, erected or made upon Broadway, to the south of Fifty-ninth street, in the Borough of Manhattan, and that all buildings hereafter erected shall conform to and be upon the street line of such street. (R. O. 1897, sec. 330, with verbal change.)

This ordinance continues the ordinance approved April 25, 1882. It withdraws all stoop-line privileges on Broadway below Fifty-ninth street. It was made necessary by the rapidly growing population of the metropolis and the enormous crowds who use the Broadway sidewalks. The ordinance has been upheld in a number of suits to recover penalties in the Municipal Courts. Where the photographer Marceau claimed that a marquise, or awning of glass and steel, on his Broadway place was not a projection within the terms of the ordinance, held the ordinance meant to forbid all projections of whatever kind. City of New York vs. Otto Sarony Co., 86 N. Y. Supp. 27.

§ 182. Any person or persons who shall hereafter make, build or erect any area, steps, stoop, court-yard or other projections, in contravention of this ordinance, shall be guilty of a misdemeanor, and shall in addition thereto, be liable for a penalty of $10 for such offense and for $10 for each and every day that such offense shall continue, (Id., sec. 331.)

§ 183. That no areas, steps, court-yards or other projections, except show windows not exceeding eighteen inches in width, and signs not projecting more than twelve inches from the house line, shall hereafter be built, erected or made upon Fourteenth street, between Broadway and Sixth avenue in the Borough of Manhattan. (Id., sec. 332, with

verbal change.)

This is similar in its general purpose to the two preceding sections. See ordinance affirmed in City of New York vs. Childs Unique Dairy Company, opinion of Judge Moore, 3rd Mun. Ct., N. Y. Law Journal, Oct. 18, 1902; affi'd by App. Term of the Supreme Ct., N. Y. Law Journal, Jan. 3, 1903. A discrimination made in the rate of speed of a railroad when running over certain specific city streets sustained. City of Buffalo vs. N. Y., L. E. & W. R. R., 152 N. Y. 276.

§ 184. That any person or persons who shall hereafter make, build or erect any area, stoop, court-yard or other projection, in contravention of this ordinance, shall be guilty of a misdemeanor, and shall, in addition thereto, be liable for a penalty of ten dollars for such offense, and for ten dollars for each and every day that such offense shall continue. (Id., sec. 332a.)

§ 185. Every area shall be inclosed with a railing, the gates of which shall be so constructed as to open inwardly, under the penalty of $100 for each offense, to be recovered from the owner or builder thereof, severally and respectively. (Id., sec. 333.)

See Tubesink vs. City of Buffalo, 51 App. Div. 14.

§ 186. Every description of opening below the surface of the street in front of any shop, store, house or other building, if covered over, shall be considered and held to be a vault or cistern within the meaning of this article; and the master builder or owner, or person for whom the same shall be made or built, shall be liable to the provisions, payments and penalties of this article severally and respectively. (Id., sec. 334.)

See notes to section 170.

§ 187. The last preceding section of this chapter shall not be construed to refer to those openings which are used exclusively as places for descending to the cellar floor of any building or buildings by means of steps. (Id., sec. 335.)

§ 188. No person shall remove, or cause or procure, or suffer or permit to be removed or insecurely fixed, so that the same can be moved in its bed, any grate or covering to the opening or aperture of any vault in The City of New York, under the penalty of $10. (Id., sec. 336.)

See Jennings vs. Van Schaick, 108 N. Y. 530.

§ 189. The last preceding section of this article shall not be construed to prevent the removal of such grate or covering, providing the aperture to such vault, during the removal of such grate or covering, shall be inclosed with a strong box or curb at least twelve inches high. (Id., sec. 337.)