Summary
In Lantry v. Hoffman, 55 Misc. 261; affd., 124 A.D. 937, in discussing a similar subject, this court said: "The defendants cannot avoid liability for the fine or penalty imposed because they were not in possession of the premises at the time the order was made, or because, under the terms of the lease which they made to the J. Newton Van Ness Company, the tenant was required to comply with all laws, orders, and regulations of the State and municipal authorities.
Summary of this case from Tenement House Department v. WeilOpinion
June, 1907.
Paul R. Towne, for appellants.
William B. Ellison, corporation counsel, for respondent.
This action was commenced by the plaintiff, as fire commissioner of the city of New York, pursuant to the provisions of section 731 of the Greater New York Charter, to recover, under the provisions of section 773 of the said charter, from the defendants a fine or penalty, in the sum of fifty dollars, for an alleged violation of section 762 of the said charter. Section 762 of the charter provides as follows: "The owners and proprietors of all manufactories, hotels, tenement-houses, apartment-houses, office buildings, boarding and lodging-houses, warehouses, stores and offices, theatres and music halls, and the authorities or persons having charge of all hospitals and asylums, and of the public schools and other public buildings, churches and other places where large numbers of persons are congregated for purposes of worship, instruction or amusement, shall provide such means of communicating alarms of fire, accident or danger, to the police and fire departments, respectively, as the fire commissioner or police board may direct, and shall also provide such fire hose, fire extinguishers, buckets, axes, fire hooks, fire doors and other means of preventing and extinguishing fires as said fire commissioner may direct." Section 773 of the charter provides as follows: "Any person, persons, or corporation, for the violation of, or non-compliance with, any of the several provisions of the several sections of this title, when the penalty is not therein specially provided, shall severally forfeit and pay a fine or penalty in the sum of $50 for each and every offense." The defendants are trustees of the estate of Eugene A. Hoffman, deceased, and as such trustees are the owners of the premises No. 50 Warren street, borough of Manhattan, city of New York. On May 16, 1906, the fire commissioner of the city of New York, pursuant to section 762 of the charter, issued, and on the day following caused to be served upon the defendants, an order requiring these defendants to install, or cause to be installed, in the said premises No. 50 Warren street, the following fire appliances within sixty days after the service of the said order upon them: "____ lines of 1½-inch perforated pipes, placed on and along the ceiling line of cellar and subcellar and extending the full depth of the building, to be connected with two way three-inch Siamese connection with clapper valve placed on outside of building and located above the curb level in a position accessible, for the use of the fire department. In lieu of such perforated pipes, automatic sprinklers may be put in." The testimony adduced on the trial showed that the defendants did not, within the time prescribed, comply with the above order as to the store cellar, but complied with the provisions of the order merely as to the subcellar. A lease was offered in evidence, wherein the defendant leased the premises No. 50 Warren street to The J. Newton Van Ness Company for a term commencing May 1, 1906, and ending May 1, 1909. Under the terms of the lease the tenant covenants, during the term demised, "to comply promptly with and execute all laws, orders and regulations of the State and municipal authorities." While the justice in the court below, before whom this action was tried, excluded evidence offered to show the purpose and use in cellars and subcellars of perforated pipes and the reason for requiring them to be connected with valves to be placed on the outside of the building, yet we think the court may well take judicial notice of the purpose to be served by the installation of these pipes and of having them connected in the manner indicated. In the judgment of the fire commissioner of the city of New York compliance with the terms of the order issued was necessary for the protection, not only of the life and property of the occupants of the premises of No. 50 Warren street, but also for the protection of the general public. It can readily be seen that, if the perforated pipes were installed in the manner required by the order of the fire commissioner, in the event of a fire upon the premises greater facility would be accorded the firemen in distributing water upon the premises. The appellants, upon this appeal, challenge the power or authority of the fire commissioner of the city of New York to issue the order that was made, and assert that, if the commissioner did have general authority to issue an order of this character, the action instituted against them, to recover a fine or penalty for violating the terms of the order, should have been dismissed, because the owners were not in possession of the premises in question. The only authority, which the respondent claims sanctioned the issuing of the order in question, is that conferred by section 762 of the Greater New York Charter quoted above. The appellants contend that, as this section does not specifically authorize the fire commissioner to order the installation of the perforated pipes, the respondent was without authority to issue the order. Bearing in mind the purpose of the pipes and the manner in which they are required to be connected with valves outside of the building, it is clear that, if they cannot be said to be included within the words "fire extinguishers," they certainly constitute a "means of preventing and extinguishing fires," and, as such, were evidently within the contemplation of the Legislature in enacting section 762 of the charter. Nor does it follow that the Legislature did not intend to include them within the meaning of section 762 of the charter, because section 102 of the building code, enacted by the board of aldermen of the city of New York, makes a provision for installing perforated pipes in buildings of a certain character and confers certain powers upon the building department of the city of New York in reference to them. The power conferred by the building code upon the building department of the city of New York is not inconsistent with the exercise of jurisdiction over the same subject-matter by other municipal authorities. The defendants cannot avoid liability for the fine or penalty imposed because they were not in possession of the premises at the time the order was made, or because, under the terms of the lease which they made to The J. Newton Van Ness Company, the tenant was required to comply with all laws, orders and regulations of the State and municipal authorities. Notwithstanding the terms of the lease, the appellants as landlords had the right to enter upon the premises to comply with the order of the fire commissioner of the city of New York (White v. Thurber, 55 Hun, 447; 2 McAdam Landl. Ten. 911); and if the tenant was obligated by the lease to comply with this order and failed to do so, it would, after notice by the landlords, be bound to reimburse them for the expenses incurred. Buhler v. Gibbons, 3 N.Y.S. 815; 2 McAdam Landl. Ten. 1243. The appellants rely upon the case of Department of Health v. Wendel, 33 Misc. 100; affd., 62 A.D. 618, but that case has no application to the question now under consideration. In that case it was held that an owner, not in possession of premises, could not be held liable because the tenant in possession failed to keep ash and garbage receptacles upon the premises, because, as was well said by Mr. Justice O'GORMAN, "The furnishing of ash and garbage receptacles cannot be regarded as a part of the permanent equipment or construction of the building." So far as the order in question in this case is concerned, it was a reasonable one and a valid exercise of police power. In the case of Health Department v. Rector of Trinity Church, 145 N.Y. 32, 42, Judge PECKHAM said: "The legislature, in the exercise of this power, may direct that certain improvements shall be made in existing houses at the owner's expense, so that the health and safety of the occupants and of the public through them may be guarded. These exactions must be regarded as legal so long as they bear equally upon all members of the same class and their cost does not exceed what may be termed one of the conditions upon which individual property is held. It must not be an unreasonable exaction either with reference to its nature or its cost. Within this reasonable restriction, the power of the state may, by police regulations, so direct the use and enjoyment of the property of the citizen that it shall not prove pernicious to his neighbors or to the public generally."
The judgment should be affirmed, with costs.
GILDERSLEEVE and PLATZEK, JJ., concur.
Judgment affirmed, with costs.