Opinion
Argued October 23, 1922
Decided November 21, 1922
M'Cready Sykes and George L. Shearer for plaintiffs, appellants and respondents.
John P. O'Brien, Corporation Counsel ( John F. O'Brien of counsel), for City of New York. Schuyler C. Carlton for defendant, respondent and appellant.
Bertram L. Kraus for defendant, respondent.
The plaintiffs are the owners of the Schuyler Hotel in the city of New York. The hotel was leased for a term of years to the defendant Luez, who covenanted that she would "at her own expense perform and fully satisfy all municipal and United States regulations, laws and ordinances which might relate to and affect the said demised premises, and all ordinances, regulations and requirements of the Board of Health, Bureau of Buildings, Tenement House Department, and any and all other municipal departments, bureaus and officials whatsoever, and make all improvements that might be ordered or required by such public or municipal authorities." Luez afterwards assigned the lease to Blake, who assumed the obligation to comply with its provisions. In June, 1915, two orders were made by the fire commissioner of the city of New York directing certain improvements as safeguards against fire. These orders were served upon the landlords, who sent a copy to Blake, the tenant in possession. No notice was given to Luez, the original lessee. Blake failed to act, and the landlords did the work at their own expense. In their first cause of action they are seeking reimbursement for these payments at the hands of Blake and Luez. A second cause of action grows out of an order signed or purporting to be signed by the commissioner of water supply, gas and electricity. This order directed the repair of defective electrical equipment. The landlords made the repairs, and again are seeking reimbursement.
The court at Trial Term dismissed the complaint as to the first cause of action upon the ground that there was no jurisdiction in the fire commissioner to require the improvements covered by his orders. It dismissed the complaint as to the second cause of action upon the ground that the order of the commissioner of water supply, gas and electricity was void as involving an illegal delegation of his discretionary powers. Exceptions were ordered to be heard in the first instance at the Appellate Division. That court affirmed the dismissal of the first cause of action as to both defendants. It reversed the dismissal of the second cause of action as to the defendant Blake, affirming, however, as to the defendant Luez. Both the plaintiffs and Blake appeal to this court.
1. We think the orders of the fire commissioner, with the exception of that part prescribing an alteration of the fire escapes, were within his jurisdiction.
Order No. 37,764 F directs the installation of "an adequate interior electric fire alarm system with bells or gongs." Express authority for such an order is contained in section 762 of the charter of the city of New York and in section 21, subdivision 2, of the Code of Ordinances relating to fires and fire prevention as in force in 1915 (Cosby's Code of Ordinances for 1915, p. 222). Section 762 of the charter provides: "In every building used or occupied as a hotel * * * there shall be placed and provided electrical or other alarms and time detectors, to be approved by the fire commissioner, * * * through which alarms of fire or other danger may be instantly communicated, by means of bells or gongs, to every portion of the building." The ordinance is to the same effect.
Order No. 37,765 F calls for three classes of improvements: (1) window-frames, sashes and doors of fireproof design at points particularly described; (2) a connecting balcony between the top balconies of the east and center fire escapes; and (3) a four-inch standpipe in the easterly building with an adequate tank upon the roof.
(a) The jurisdiction of the fire commissioner to direct the installation of fireproof window-frames, sashes and doors is established by our recent decision in People v. No. 131 Boerum Street Co. ( 233 N.Y. 268).
(b) The jurisdiction to regulate the number and the form of fire escapes has been lodged in the superintendent of buildings to the exclusion of the fire commissioner. Section 152 of the Building Code as in force in 1915 provides that "every building * * * more than three stories in height occupied and used as a hotel" shall be furnished "with such good and efficient fire escape, stairways, or other means of egress in case of fire as shall be directed by the Superintendent of Buildings having jurisdiction; and said Superintendent shall have full and exclusive power and authority within said city to direct fire escapes and other means of egress to be provided upon and within said building or any of them." Sections 774 and 775 of the charter do not make the jurisdiction of the fire commissioner concurrent in this respect with that of the superintendent of buildings. The commissioner under those sections may enforce what the superintendent has prescribed. The power to regulate is in one; the power to execute is in both. No claim is made that these fire escapes departed from the requirements of the superintendent of buildings. The commissioner was without authority to change the method of construction. The item is a small one, for the cost of the change was only $55. The order to that extent is void.
(c) The jurisdiction of the fire commissioner to direct the installation of a standpipe is sustained by sections 580 and 581 of the Building Code.
These sections provide:
§ 580. "All buildings now erected, unless already provided with a 3-inch or larger vertical pipe, or hereafter to be erected, exceeding 150 feet in height, shall be provided with an auxiliary fire apparatus and appliances, consisting of water tank on roof or in cellar, standpipes, hose, nozzles, wrenches, fire extinguishers, hooks, axes and such other appliances as may be required by the fire department — all to be of the best material and of the sizes, patterns and regulation kinds used and required by the fire department."
§ 581. "In every building now erected, unless already provided with a 3-inch or larger vertical pipe, which exceeds 100 feet in height, and in every building hereafter to be erected exceeding 85 feet in height, and when any such building does not exceed 150 feet in height, it shall be provided with a 4-inch standpipe, running from cellar to roof, with one two-way 3-inch Siamese connection to be placed on street above the curb level, and with one 2½-inch outlet, with hose attached thereto on each floor, placed as near the stairs as practicable. If any of the said buildings extend from street to street, or form an L shape, they shall be provided with standpipes for each street frontage."
The Schuyler Hotel consists of three buildings, nine stories high in the front and ten stories in the rear. The buildings are connected in the cellar and on the first floor, but are separate above, cut off by impenetrable party walls. In 1915 a four-inch standpipe was in the westerly building, a three-inch standpipe in the center one. The easterly building was unprotected. It was there that the order directed a new standpipe to be installed. Having in view the method of construction as detailed in the report of the chief examiner of the bureau of fire prevention, we think that the three buildings, though known by a single name and for some purposes to be grouped as one, are to be taken, in applying sections 580 and 581 of the ordinances, as several and distinct. Standpipes in two would not dispense with a standpipe in the third. Identity of name is not a substitute for unity of structure.
If a separate standpipe was necessary in the easterly building as in the others, the fire commissioner was under a duty, specifically imposed by statute, to see to it that the equipment was supplied. He is empowered "to enforce all laws and ordinances" in respect of "the prevention of fires and danger to and loss of life and property therefrom," and "the installation and maintenance of automatic or other fire alarm systems and fire extinguishing equipment" (Charter, § 774). He is further empowered to "order in writing" the remedying of conditions which are found to violate the laws or ordinances in respect of fires or their prevention (Charter, § 775). These powers are not withdrawn by section 650 of the Building Code, charging the superintendent of buildings with the general duty of enforcing the provisions of the Code, and of signing and issuing the notices essential to that end. Statute and ordinance may stand together. Fire commissioner and building superintendent have concurrent powers of supervision within their respective spheres of duty ( Lantry v. Hoffman, 55 Misc. Rep. 261, 264; affd., on opinion below, 124 App. Div. 937).
The defendant says that, for all the record shows, the height of the building does not exceed one hundred feet. No such point was made upon the trial. The number of stories together with the date of construction leaves little doubt as to the facts. Upon another trial the omission can be supplied.
The conclusion thus reached makes it unnecessary to consider whether authority to make the order might be derived from other sources, if sections 580 and 581 of the Building Code were thought to be inapplicable (Charter, § 762; chap. 12, art. 2, § 20, New York City Ordinances, Cosby's edition for 1915, p. 222; People v. Kaye, 212 N.Y. 407; People v. No. 131 Boerum Street Co., supra).
3. We uphold the order directing the repair of defective electrical equipment.
The commissioner of water supply, gas and electricity has a staff of inspectors. In the nature of things, it is impossible that he should personally examine every building in which electricity is used. Ninety thousand certificates of inspection are issued in a year. The practice followed in this instance has been long in force. The practice is for an inspector who discovers defective conditions to report to the chief inspector. Upon the latter's approval of the report, an order to repair the defect is signed by the chief clerk in the name of the commissioner, the signature being made through the use of a rubber stamp. The practice follows the authority conferred by the commissioner himself. He has directed generally and in advance that whenever an inspector reports a defect and the chief inspector concurs, an order shall issue.
We find here no unlawful delegation of discretionary powers. The commissioner, in default of personal inspection, must rely on the advice of others. When his inspector and chief inspector report that there is danger, he can hardly do less than direct that the danger be removed. He does not abdicate his office or its duties by declaring in advance that this course will be pursued. The order in question recites the defects, as, e.g., broken fixtures, faulty insulation, and commands the owner in general terms to "remove the violations." There is no attempt to circumscribe the choice of means or remedies. There is merely a direction to accomplish a result. Such a direction must follow almost as of course. The notice of danger provokes as a matter of routine the warning to abate it.
The line between the ministerial and the discretionary is not preordained and rigid for administrative officers. Administration is a practical business. A doctrinaire formalism must not be suffered to paralyze and thwart it. There are times when a policy may be formulated in advance of the event, and times when the event must precede the formulation of the policy. Government could not go on if the least infusion of discretion on the part of the mandatary would invalidate the mandate. Courts have been governed in these matters by considerations of good sense, of expediency, and of the significance of a course of dealing confirmed by custom and tradition ( Edwards v. City of Watertown, 24 Hun, 426; Kramrath v. City of Albany, 53 Hun, 206, 208; People ex rel. Vaughn v. Supervisors of Renss. Co., 52 Hun, 446, 448; 119 N.Y. 636; Wilcox v. Jackson, 13 Pet. 498, 513; Williams v. U.S., 1 How. [U.S.] 290, 297). It is a question of degree.
4. The plaintiffs failed to establish the liability of the defendant Luez. She had no notice of the orders. The duty to comply with them did not arise till notice was received (Charter, § 778a). If the plaintiffs wished to charge the expense against her as well as against Blake, they should have placed her in default.
The judgment in favor of the plaintiffs and against the defendant Blake upon the second cause of action should be affirmed, with costs to the plaintiffs, and the judgment in favor of said defendant as to the first cause of action should be reversed, and a new trial granted.
The judgment in favor of the defendant Luez should be affirmed with costs.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment accordingly.