Opinion
April, 1912.
Archibald R. Watson, corporation counsel (John P. O'Brien and F.E.V. Dunn, of counsel), for appellant.
Jellenik Stern (Nathan D. Stern and Isidor Neuwirth, of counsel), for respondents.
This action was brought to recover a penalty for an alleged violation of the Tenement House Law. Section 124 of the Tenement House Law makes provision for two penalties; first, a penalty of $50, which may be recovered upon proof of the violation of any section of the Tenement House Law, and, second, a penalty of $250, which may be recovered upon proof of the violation of any section of said law, and proof of the service of a notice or order and the failure to comply with said notice or order.
Upon the record before us the plaintiff asks a reversal of the judgment. Having elected to recover the $250 penalty, it was incumbent upon the plaintiff not only to prove that the Tenement House Law had been violated, but also to prove that the notice or order was served in the manner required by section 142 of the Tenement House Law, and that the violation continued after the service of such notice or order. Upon the trial the plaintiff offered in evidence, over the objection of the defendants, a paper which purported to be an order of the tenement house department respecting the alleged violations upon the premises. It is claimed that this order was not properly authenticated, because, instead of being signed by the proper officer of the tenement house department, it contained a facsimile of the signature of such official made with a rubber stamp. The Tenement House Law does not provide for the form of the order, or the manner in which it shall be signed. It requires merely that it shall be a "notice or order of the department." § 124. The order is none the less the order of the department because it bears a facsimile of the signature of the proper official instead of an original signature. The proof showed that the order came from the tenement house department, and that it was identical with that which was posted upon the premises. In the absence of evidence tending to show that it was not the order of the tenement house department, it was sufficient.
The court below also held that the service which was made of the order was not in compliance with the requirements of the Tenement House Law. Section 142 of the Tenement House Law prescribes the manner in which notices and orders shall be served. That section provides that "Every notice or order in relation to a tenement house shall be served five days before the time for doing the thing in relation to which it shall have been issued. The positing of a copy of such notice or order in a conspicuous place in the tenement house, together with the mailing of a copy thereof, on the same day that it is posted, to each person, if any, whose name has been filed with the department of health in accordance with the provisions of sections one hundred and forty and one hundred and forty-one of this chapter, at his address as therewith filed, shall be sufficient service thereof."
The Tenement House Law provides that owners of tenement houses shall file their names and addresses with the department. §§ 140, 141. Section 144 of that law provides that such names and addresses shall be indexed under direction of the registrar of records of the department of health "in such a manner that all of those filed in relation to each tenement house shall be together, and readily ascertainable." That section also provides that "said indexes shall be public records, open to public inspection during business hours." The registration of ownership of the tenement house in question was under the name of "Weil and Mayer," and the address given was "5 Beekman Street." For many years great difficulty was experienced in enforcing the sanitary requirements in relation to tenement houses because of the inability to locate the owners of the houses. This difficulty led to the legislation which we now have on the subject. The early difficulties encountered by the department are set forth in the "First Report of the Tenement House Department of the City of New York, 1902-1903," volume 1, page 286.
Under the existing provisions of the law, the duty of supplying this information to the proper authority is imposed upon the owner. § 140. In accordance with this provision, the name "Weil and Mayer" was filed and the address given. This registration became a public record, and was admissible in evidence for the purpose of showing that the owners of the tenement house had filed the name and address required by law. It is true that no statute has been called to our attention declaring that such a public record is admissible in evidence. Notwithstanding the absence of statutory sanction, we think that the record was admissible, and that its reception in evidence can be sustained upon well settled principles. In the first place, it is to be noted that the names and addresses of owners of tenement houses are required by law to be filed by the owner. The name and the address are found recorded in the proper public office. The legal presumption in such cases is, that the law has been complied with and that the name and the address as filed in the public office were furnished by the person required by law to furnish it. If this presumption is indulged, then the statement of the name and address of the owner should be given the force and effect of an admission, and, as such, may properly be received against the person making it. There are also other circumstantial guarantees of trustworthiness. Such a record is public and is kept by a public officer, and the record itself relates to matters coming within the official cognizance of such public official. The legal duty which such public official is under is presumptively sufficient to insure its accurate performance. Wig. Ev., § 1632. These considerations tend to insure the accuracy of the record, and, coupled with the necessity which exists for resorting to this kind of proof in such cases as the one now before us, seems to me to sanction its admission in evidence. It is apparent that no prejudice or injustice can result to the defendants from receiving this record in evidence. If the defendants are not the owners of the premises in question, they cannot be held liable for the penalty sued for. If they are the owners of the property, they were required by law to furnish their names and addresses to the proper public authority.
A copy of the notice or order in question was posted in a conspicuous place in the tenement house known as No. 536 West Forty-fifth street, and a copy thereof was mailed to Weil and Mayer, the names filed with the department of health at the address designated. This was prima facie a compliance with the law. The owners have no just cause of complaint if the notice was posted as required and mailed to the names and addresses which the owners themselves had furnished. Personal service is not essential to due process of law, and the right to prescribe "a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him" is within the legislative power. Hurley v. Olcott, 198 N.Y. 132.
The controlling reason which seems to have led the learned court below to dismiss the complaint was, that the defendants proved that they had leased the premises in question to one Kopel, and that, since the making of that lease, these defendants had not been in the possession of the property. It is significant that the statute imposes the duty of complying with the lawful order of the tenement house department upon the owners. This is a duty which attaches to the owners, as owners of a tenement house, the condition of which affects the public health and safety. It is a duty which is personal to the owners, and cannot be delegated by them. Nor can the owner relieve himself by contract with a third party from the obligation which the statute imposes upon him. 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. 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 Landlord Tenant, 911."
We are of opinion that the authenticity of the notice was sufficiently established, and that the order or notice was served in accordance with the requirements of the law, and that the duty which the statute imposed upon these defendants as owners of the house in question could not be delegated.
It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
GUY and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.