111 N.Y.S. 833 | N.Y. App. Div. | 1908
Lead Opinion
The question in this case was submitted to the Municipal Court upon an agreed statement of facts upon which a judgment was directed for the defendant which has been reversed by the Appellate Term (58 Mise. Eep. 221). Section 780 of the charter (Laws of 1901, chap. 466) provides : “ It shall be the duty of a marshal or his officers and agents, when authorized by him in writing so to do, to enter into any building or premises within said city for the purpose of examining, or causing to be examined, the stoves and pipes thereto, ranges, furnaces and heating apparatus of every kind whatsoever, including the chimneys, flues' and pipes with which the. same may be connected, engine rooms, boilers, ovens, kettles and also all chemical apparatus or other things which in his opinion may be dangerous in causing or promoting fires, or dangerous to the firemen or occupants in case of fire; and upon finding any of them defective or dangerous, or in any manner exposed or liable to fire from any cause, he shall report the same to the commissioner, who may thereupon issue orders or special directions.” Acting- under this authority the firé marshal inspected the premises of the defendant which was a .four-story tenement house constructed of brick and stone, each story containing two apartments divided by a hallway running from the front to the rear of the building, containing a dumb-waiter"shaft and a dumbwaiter thérein used for the purpose of passing from one story of
It is not contended that this dumb-waiter shaft was connected with any range, furnace or heating apparatus of any kind; that it was a chimney, flue or pipe with which such heating apparatus' was connected; that it was an engine room, boiler, oven, kettle or chemical apparatus, or had any connection with or relation to any of these “ appliances ” or “ things.” Plaintiff seeks to bring this case within section 780 of the charter on the ground that it comes within the provision : “ Or other things which in his opinion may be dangerous in causing or promoting fires.” . The officer who was authorized to perform this duty is the fire marshal, the head of a bureau of the fire department. He is given by. the State no jurisdiction. over the structural part of the building, however improperly constructed, but is authorized to examine the apparatus used for heating, which is to include chimneys, flues and pipes with which the same may. be connected, and also the engine rooms, boilers, ovens, kettles and also all chemical apparatus. . .All these, however, relate to heating appliances or appliances to which heat are applied as distinct from the structural part of the building, and the chimneys, flues and pipes which may be connected with the heating apparatus.- He is also given jurisdiction over chemical apparatus, which I suppose means all machinery or apparatus used for the manufacture or which has to do with the preparation of chemical substances. But it seems to me that stairways, .elevator shafts, dumb-waiter shafts and such other parts of the building proper,
It follows, therefore, that the determination appealed from must be reversed, with costs, and the complaint dismissed, with costs.
Clarke and Scott, JJ., concurred ; McLaughlin and Houghton, JJ., dissented. ' . t
See Penal Code (Laws of 1881, chap. 676), §§ 498, 504.— [Ref.
See Laws oí 1901, chap. 466, “Section Three.” — [Rep.
Dissenting Opinion
The purpose of the statute in question is obvious, and for that reason the commissioner is given discretionary power in the matter of proceeding upon the marshal’s report. This discretion is not limited to the identical thing specified. The words “or other things ” which in his opinion may be dangerous in causing or promoting fires, or dangerous to the firemen or occupants in case of fire, indicate a legislative intent to the contrary. It is this intent which should govern in the construction. “ A strict and literal interpretation is not always to be adhered to, and where the casé is
It is not difficult to see that -a dúmb-waiter shaft, constructed as this one is, entirely of wood, would be very dangerous in promoting a fire and would be most efficient in carrying it to the different parts of the building, and' for that reason would be dangerous to the firemen or occupants .of the building in case of a fire therein.
The construction adopted in the.prevailing opinion is.too technical. It destroys in a large measure the purpose which the statute was designed to accomplish. The rule' referred to, • noscitur a sociis, does not apply. For these reasons, as well as those stated in the opinion of Mr. Justice Bischoff (58 Misc. Rep. 221) I am unable to concur with the majority of the court.
I think the determination of the Appellate Term should be affirmed and judgment absolute directed against the defendant on the stipulation.
Hotjg-htoit, J., concurred, > " ■
Determination reversed, with costs, and complaint dismissed, with costs.