147 N.Y.S. 941 | N.Y. App. Term. | 1914
This action was begun against defendant, owner of certain premises, to recover the penalty of fifty dollars, as the summons recites it: “ for permitting the tenement house (described) to be used for the purpose of prostitution and assignation in violation of § 109 of the Tenement House Law.” It was conceded that two women, one occupying an apartment on the second floor and one an apartment on the first floor, had used the same for purposes of prostitution and had been arrested and found guilty. Defendant was allowed to testify that she had no knowledge of the unlawful use of the apartments affected, "arid that nothing had occurred to even suggest a suspicion on her part, prior to the arrest of the offenders. This testimony was admitted, although plaintiff objected that it was immaterial, irrelevant and incompetent, because under the statute the mere occurrence of the offense on premises owned by the defendant, regardless of notice to or knowledge by her, justified the imposition of the penalty.
The only question presented by this appeal is
Section 109 of the Tenement House Law, so far as material, reads:
"§ 109: * * * No tenement house or any part thereof * * * shall be used for the purpose of prostitution * * *” and section 124 reads:
“ § 124: Penalties for violations. The owner of any tenement house or part thereof * *- * where any violation of this chapter * * * exists * * * shall * * for each such violation * * * be subject to a civil penalty of fifty dollars.”
The enactment so far as it regulates generally the use and construction of tenement houses is conceded to be a valid exercise of the police powers of the state. It must also be conceded that, for the violation of any act validly prohibited by the state, the state may impose an appropriate monetary penalty upon the person guilty of performance of the act or upon one who permits it to be performed or continued. It seems to me, however, to be evident that, in order to charge a person with responsibility for the mere commission of an act by another person (not his agent), it must be within reasonable human possibility that he can prevent the same. I am of opinion that a landlord of a tenement house cannot lawfully be held responsible merely because one or more acts of prostitution have been committed by a tenant or other person on the premises. It is evident that he could not prevent such acts without having an agent constantly present with every single person in the house. A requirement so
“ It cannot be claimed that it would have the right, even under the exercise of the police power, to command the doing of some act by the owner of property and for the purpose of carrying out some provision of law, which act could only be performed by the expenditure of a large and unreasonable amount of money on the part of the owner. If such excessive demand were made the act would without doubt violate the constitutional rights of the individual. The exaction must not alone be reasonable when compared with the amount of the work or the character of the improvement demanded. The improvement or work must in itself be a reasonable, proper and fair exaction when considered with reference to the object to be attained.” Opinion by Peckham, J., in Health Department v. Rector, etc., of Trinity Church, 145 N. Y. 32, 41. See also Tenement House Dept. v. Moeschen, 179 N. Y. 325, 333, 334 ; affd., 203 U. S. 583.
Again, since the landlord cannot prevent such acts, to charge him. with a penalty for their occurrence would be to punish him where he has omitted no legal duty and committed no wrong. From that standpoint the act would be unconstitutional, as determined in Ives v. South Buffalo R. Co., 201 N. Y. 271, 296. It would also fail to meet the test prescribed in State of Washington v. Clausen, 65 Wash. 156, 177, 195, which declined to follow, the Ives case and. interpreted the Workingmen’s Compensation Law as constitutional. The Supreme Court of Washington, as I read the decision, conceded that the compensation law incidentally deprived certain employers of their property without fault or perhaps took the property of one
The case of Bertholf v. O’Reilly, 74 N. Y. 509, marks perhaps the extreme limit to which our courts have gone in cases involving a question analogous to the one at bar. There it was held that a landlord might lawfully be made liable for a penalty, or compensation to be recovered by the injured person, to whom liquor had been sold, causing intoxication and consequent injury. But the act, there construed, being the one commonly known as the Civil Damage Act of April 29, 1873, limits liability to a landlord who has rented his premises with knowledge that intoxicating liquors are to be sold thereon. The court said significantly (at p. 525): “ The liability imposed upon the landlord for the acts of the tenant is not a new principle in legislation. His liability only arises when he has consented that the premises may be used as a place for the sale of liquors.”
From what has been said, it follows that if the statute required from the landlord, or other person in control of the premises, either an appropriate degree of vigilance to prevent the commission of the offense; or if we construe it to require him to effect an abatement of the offense when he had knowledge thereof or where the circumstances were sufficient to charge him with knowledge, it would manifestly be valid.
The learned corporation counsel urges that the evil
Consequently the evidence offered by the defendant, proving that she had no knowledge of the offenses complained of and that nothing had occurred to charge her with such knowledge, was competent and relevant.
While I do not base my opinion on other provisions of the act, nevertheless section 154, which provides that “ in an action * * * for a violation of any of the provisions of this chapter relating to prostitution * * * proof of the ill-repute or the common fame of the premises * * * or of the inmates thereof, or of those resorting thereto shall constitute presumptive evidence and it shall be presumed that such use was with the permission of the owner, agent and lessee,” lends color to the notion that the legislature had in mind that the owner should not be chargeable generally under the act without knowledge or notice.
The judgment, in my opinion, is, therefore, right and should be affirmed.
Guy and Pendleton, JJ., concur.
Judgment affirmed.