119 N.Y.S. 812 | N.Y. App. Div. | 1909
This is an action in equity for an injunction permanently restraining the defendants from enforcing the penalties prescribed by what is known as the Tenement House Act, in cases wherein a building falling within the purview of that act is constructed or maintained contrary to the provisions of the act. The defendants appeal from a judgment, entered upon the report of a referee, granting an injunction as prayed for in the complaint. The building affected is of the class commonly known as an apartment house or apartment hotel, being quite large, expensively built and fitted up, and having on every floor suites of apartments, each of which contains a private hall, a drawing room, library or dining room, bath room with a set hath and toilette, three sleeping rooms, a kitchen and a servants’ toilette. There is an elevator, which, with the halls and stairways, are for the common use of all the tenants of the several suites. The sole question in the case is whether or not this building is, in legal contemplation, a tenement house within the purview of the Tenement House Act in force when it was built. (Laws of 1901, chap. 334.) If it did fall within the purview of
Comparing this definition with that of a tenement house as contained in the Tenement House Act and heretofore quoted it will be seen at a glance that both apply to the same kind of building, to wit, one intended and used as the home of three or more families or households, living independently of each other and doing their cooking within their own premises. In the definition of a tenement house there is expressed, and in the definition of an apartment
Upon the subject we are now discussing the commissioners spoke as follows in their report:
“ Definition of Tenement House.
“ A tenement house as defined by law is ‘ Any house occupied as the home or residence of three families or more, living independently of each other, and doing their cooking upon the premises.’ This definition includes those houses which are popularly called tenements, as well as those which are popularly Galled ‘ flats’ or ‘ apartment houses’ Precisely how many of the two and one-quarter million people who constitute the tenement house population of New York live in the houses which would be popularly called tenements cannot be stated with absolute accuracy, because the question involves some determination of the dividing line between ‘ tenements,’ ‘flats’ and ‘apartment houses,’ which no one has ever been able as yet to satisfactorily draw. If the line is to be drawn between those houses which in their construction and maintenance require regulation for the protection of their inmates and those which will be properly built and maintained from motives of self-interest without regard to legal regulations, it is certain that more than two million people — that is, more than half the entire population of New York — are dependent upon the existence and enforcement of a proper' tenement house law for their health, protection against fire, and social environment. It has been suggested to the Commission that they should distinguish between the tenement and the apartment house, and confine the operation of the tenement house laws to the former. All who have made this suggestion have been asked what regulations for lighting, ventilation, fire protection and sanitation should be required by law for the protection of the dweller in an East-Side tenement, which should not equally be required for those who*903 live in "West-Side apartments, or even if not required, would not be complied with from motives of enlightened self-interest by every intelligent owner of a first-class apartment house % Ho such regulation has been pointed out, nor has any member of the Commission been able to suggest any. On the other hand, more than twenty officials of tile board of health strongly recommend that no change in the law be made for the reason that there could be no distinction which would not result in evasion of law, and that the only effect of such a distinction would be to give concessions to the larger apartment houses which’ would be objectionable from sanitary reasons. If, therefore, there is no regulation appropriate to the ‘ cheapest tenement ’ which is not equally appropriate to the most expensive ‘ apartment house,’ and which, indeed, would not be complied with in the latter case by far-sighted owners, whether such regulation were or were not required by law, there is no reason to draw a distinction which, since the first enactment of a tenement house law in Hew York, has been found unnecessary and impracticable, and which, if drawn, would make one set of laws for the rich and another for the poor, a class distinction, obnoxious to the democratic policy of our State.” (See Assem. Doc. 1901, vol. 25, No. 76, pp. 59-61.)
It seems to us, therefore, that the legislative definition of a tenement house includes and covers the buildings that have come to be known as apartment houses,' and was intended to cover them, so as to bring within the purview of the Tenement House Act and the jurisdiction of the tenement house department all buildings designed to be occupied and actually occupied “ as the home or residence of three families or more living independently of each other and doing their cooking upon the premises,” whether such a building be known as a tenement house, a flat or an apartment house. We are not unmindful of the fact that this court and the Court of Appeals have recognized a distinction between tenement houses and apartment houses. (White v. Collins Building & Const. Co., 82 App. Div. 1; Kitching v. Brown, 180 N. Y. 414.) In each of these cases the question arose under a covenant against the erection of tenement houses, made in 1873, before modern apartment houses were known or had come into general use. These decisions proceeded upon the theory that the covenant must be read and construed in the light of the conditions which existed when it was exe
It follows that the judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.