134 N.Y.S. 1062 | N.Y. App. Term. | 1912
This action was brought to recover a penalty for an alleged violation of-the Tenement House. Law.
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
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 pro-vides 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 hous.e 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 áre 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
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
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 orders 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. Mor 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. Rep. 261; affd., 124 App. Div. 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. MTewton Van Hess 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.
Guy and Bijur, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.