47 N.Y.S. 641 | N.Y. App. Div. | 1897
This proceeding was begun under the authority of section 659 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 567 of the Laws of 1895, for the purpose of condemning certain buildings situated in the rear of Nos. 308, 310, 312 and 314 Mott street in the city of New York, by a petition praying for the condemnation of the buildings, filed by the department of health. In that petition it was alleged substantially that the buildings sought to be condemned were in such condition as to be dangerous to public health, and that they were not reasonably capable of being made fit for human habitation and occupancy, and that the evils caused by said buildings could not be remedied in any other way than by their destruction. To this petition an answer was filed in which the appellant denied the existence of a nuisance upon said premises, or that the premises were not fit for human habitation, and practically put in issue the existence of all the" facts which, by the statute in question, are necessary to authorize the condemnation of the buildings. Upon this issue a reference was ordered to hear and determine, and the referee found that the condition of affairs "alleged in the petition existed, and that the plaintiff was entitled to judgment for the appointment of commissioners. Judgment to that effect was accordingly entered, and thereupon three commissioners were appointed to appraise the value of the property, and a hearing was had before the'm in due form. As the result of that hearing the
Before considering the reasons given by the appellant why this order should be reversed, it is advisable to examine the statute to ascertain just wliat the object of the Legislature was, in passing.it, and the means they have adopted to attain that object. The statute is in that part --of the Consolidation Act which relates to the health department,''and contains the provisions with regard to tenement houses. As is well known, the condition of many buildings used for that purpose has been for years a menace to the public health, and grave questions have arisen as to the best manner in which the evils arising from their condition comd be remedied and the dangers to the public health averted. The condition of these houses arose not alone from the habits of the inmates, but principally and largely from the construction, plans and location of the buildings themselves. It was well understood that these evils were such as to. seriously threaten the health of the community and to render likely severe epidemics, with all the consequences which follow such a condition of affairs in a crowded community, and to meet that condition and to avert these perils careful inspection was required, and it might often be necessary to take summary measures to abate nuisances which, if permitted to exist, would endanger the health of the people of the city. To meet and provide for this condition of affairs was the object of the statute.
■ It provides, in the first place, that whenever it shall be certified to the board of health- that any building is infected with contagious diseases, or, by reason of want of repair, has become dangerous to life, or is unfit for human habitation, because of defects in drainage,
The foregoing is all that need be recited of the statute at present. It is quite clear that the object of this statute was to provide a summary way in which any nuisance in a building, as the result of
The appellant here insists that the judgment appointing the commissioners to appraise the damages is erroneous, because there was no sufficient evidence that his buildings were unfit for human habitation, or that they were not capable of being made. fit. No evidence upon this subject was offered by the defendant, and the case stands solely upon the proof made by the plaintiff of the situation and condition of these buildings, and such proof is entirely undisputed. The evidence showed that' the building or buildings, in question were situated in the rear of four other buildings owned by the appellant, which fronted upon Mott street,, and were. also occupied as tenement houses. These rear houses were ninety-one feet long from north to south, and a little over twenty feet wide. The length of the buildings was parallel -with Mott street and they extended across the premises of the defendant, occupying in their, north and south course the whole width of those- premises. They Were five stories high. From the front of these buildings to the rear of the buildings occupying the front of the lot was a court extending the whole width of the lot, and being five feet in width on the northern extremity, and' .eleven feet at its Widest part. This court was entirely surrounded by buildings, the lowest of which .were ■ three stories high. The , front buildings facing on Mott street, the rear'of .which formed the front wall of this court, were four stories high. , On each end of this narrow court were buildings over forty feet high,' and the rear of the coiirt was formed by the wall of the buildings in question, which were five stories high. At the southeast corner of this court there was a space, of eleven inches between, the rear wall of the building on the next lot-and- the south wall of: the building in question, but except for that space of eleven inches, there was no way in which fresh air could reach that court except’ from the top. The north and south walls of these buildings weredead walls without any windows or ventilation whatever, except a small window on the north side of each story. The east wall stood next to a dead wall and about eight inches from it, so that the space between the east wall of the tenements in question and a blank wall of the buildings several stories in height, just east of it, was ninety-one feet long and eight inches wide. As might be expected, this space was "full of all sorts of tilth, and its condition was such as to be unmentionable. The apartments in these buildings consisted of three rooms a front room lighted and ventilated by two windows, each five feet by three, opening into the front courtyard, and two bedrooms in the rear, each eight feet high and six feet ten inches square, and lighted by a single window two feet square, opening on to the court eight inches wide, and having no other ventilation, except that the bedrooms on the northeast corner on each floor had a window opening on the north into a yard. But except for that the bedrooms had no ventilation whatever, save such as they might get from the living room or from the windows,opening on to this ill-smelling and narrow court, eight inches wide. The cellars of these buildings were occupied by school sinks, for the use of all the tenants of both front and rear buildings. These cellars opened into the courtyard and had no other means of ventilation. They were damp, the floor being constantly wetted by the water from the hydrants in front of the buildings and by the sinks. The smell from the cellars going through the whole house was almost unendurable. The stairways in the buildings are narrow and steep, and always were dark and foul; and smoke and coal gas from the defective chimney flues have discolored the walls and ceilings so that it is impossible to make them white. The roofs leak, causing the rooms to be wet. The plaster on the walls and ceilings is cracked in many places, and portions of it have fallen. The places around the sinks in the hall are constantly damp from the waste splash. The houses swarm with vermin throughout. Every room is damp and filled with air which is foul and unfit to breathe. There is no possible way in which the sun could shine into these buildings. The only sunlight which could approach them is that which at certain hours of the day filters down into this court eleven feet wide, along their front, but the rays of the sun which fall into that courtyard for a short time during the day cannot enter any of the rooms of the house, and are insufficient to properly light the lower floors, which are so dark that for a" large portion of the time artificial light has to be used in them, as might be expected. What little sunlight filters into this court is obstructed by the fire escapes along the front of the buildings, which are used for the deposit of various articles by the tenants. This has been the condition of these buildings for a long time. The population in May, 1896, was 115 men, women and children in the rear houses, and 150 in the front houses. Whereas the death certificates show that during the past six years the annual death rate in New York was 24 to 1,000 in these houses, the death rate was 45.87 to 1,000. The death rate in these buildings was considerably higher than the death rate in the ward, and the infant death rate was abnormally high, so that in one year more than one-third of the children under 5 years of age in these buildings died. These deaths were largely caused by the diseases which are nourished by dampness and exposure to foul -air. All these facts not only appeared by the testimony, but .were entirely undisputed or unexplained, and although it was made to appear that such had been the condition of affairs in these buildings for several years, there was no pretense that any effort had ever been made to remedy such of them as were remediable, or that the buildings themselves were capable of being repaired or put into such condition as to be fit for human habitation.The appellant here insists that the judgment appointing the commissioners to appraise the damages is erroneous, because there was no sufficient evidence that his buildings were unfit for human habitation, or that they were not capable of being made. fit. No evidence upon this subject was offered by the defendant, and the case stands solely upon the proof made by the plaintiff of the situation and condition of these buildings, and such proof is entirely undisputed. The evidence showed that' the building or buildings, in question were situated in the rear of four other buildings owned by the appellant, which fronted upon Mott street,, and were. also occupied as tenement houses. These rear houses were ninety-one feet long from north to south, and a little over twenty feet wide. The length of the buildings was parallel -with Mott street and they extended across the premises of the defendant, occupying in their, north and south course the whole width of those- premises. They Were five stories high. From the front of these buildings to the rear of the buildings occupying the front of the lot was a court extending the whole width of the lot, and being five feet in width on the northern extremity, and' .eleven feet at its Widest part. This court was entirely surrounded by buildings, the lowest of which .were ■ three stories high. The , front buildings facing on Mott street, the rear'of .which formed the front wall of this court, were four stories high. , On each end of this narrow court were buildings over forty feet high,' and the rear of the coiirt was formed by the wall of the buildings in question, which were five stories high. At the southeast corner of this court there was a space, of eleven inches between, the rear wall of the building on the next lot-and- the south wall of: the building in question, but except for that space of eleven inches, there was no way in which fresh air could reach that court except’ from the top. The north and south walls of these buildings were
From this testimony the learned referee was justified in his find: ings that these rear tenement houses were unfit for habitation. But the testimony was far from establishing that they were not capable of being made fit for habitation, or that the nuisance upon them could not be abated in any other way than by their destruction. It was quite clear from the testimony that the unsanitary condition of the. buildings was caused, to a very considerable extent, if not entirely, by the filthy habits of the persons who inhabited them, and grew out of the fact that they were'used for human habitation. It did not appear that, after the buildings had been vacated, they might not easily have been put into a sanitary condition by proper repairs and the removal of those offensive appurtenances which were more particularly complained of as the cause of their unhealthy condition.
One of the allegations-in the petition was that the buildings pre
The case then, so far as the plaintiff is concerned, must stand upon the condition of these "buildings themselves, and upon- the fact that they were not capable of bei'ng put in such a condition that they would not be of themselves dangerous to public health. Unless that was made to appear, the right to. destroy them did not exist. In such cases the right to condemn grows out of .the right to destroy the building because it is a public nuisance and. can be abated in no other way ; and unless that is made to appear, there can be no final order for condemnation.
Patterson, Williams and O’Brien, JJ., concurred ; Parker, J., not voting.
Final order and judgment reversed and a new trial ordered of the issues framed upon the petition and answer, with costs to appellant to abide event.