Cartwright v. City of Cohoes

Herrick, J.: The Legislature may lawfully confer on boards of health the power to enact sanitary ordinances having the force of law within the localities for which they act. (Polinsky v. People, 73 N. Y. 65 ; Cronin v. People, 82 id. 318.) The rule or regulation of the board of health in relation to privy vaults was, I think, a reasonable one. (Health Department v. Rector, 145 N. Y. 32; Board of Health v. Copcutt, 140 id. 12; Town of Newtown v. Lyons, 11 App. Div. 105 ; Commonwealth v. Roberts, 155 Mass. 281.) That privy vaults in a city may be detrimental to the public health when located near to inhabited dwellings or places of business needs very little argument to prove ; and within the principle of the above-cited cases it seems to me that they are eminently proper subjects for regulation by boards of health. The ordinance being a reasonable one, one that the board has a right to pass, the board had a right to enforce it in the manner provided by the statute, even though that involved to some extent the destruction of plaintiff’s property. “ The right of summary abatement of nuisances without judicial process or proceeding was an established principle of the common, law long before the adoption of our Constitution, and it has never been supposed that this common-law principle was abrogated by the provision for the protection of life, liberty and property in our State Constitution, although the exercise of the right might result in the destruction of property.” (Lawton v. Steele, 119 N. Y. 226, 235.) The statute, section 26, chapter 661 of the Laws of 1893, provides that, “ If the owner or occupant of any premises fails to comply with any order or regulation of any such local board for the suppression and removal of any nuisance or other matter, in the judgment of the board detrimental to the public health, made, served or posted as required in this article, such boards or their servants or employees [73] may enter upon the premises to which such order or regulation, relates and suppress or remove such nuisance or other matter.” In this case the regulation was published. The notice to plaintiff was served upon her. In addition to the general regulation No. 26, the board of health condemned this particular privy, after taking testimony in relation thereto and giving the plaintiff an opportunity to be heard. It went much further than the law required it. to do. It was not obliged to hear anybody. It could have acted upon its own inspection and knowledge of the premises. (People ex rel. Copcutt v. Board of Healthy 140 N. Y. 1, 10; Health Department v. Rector, 145 id. 32, 41.) In addition the fact appears that the plaintiff’s privy was in fact a nuisance. The referee has found, and there is evidence to sustain it, that the vault was in fact a nuisance and detrimental to the public health. And as such the board of health has a right to abate it and should not be restrained from so doing. The judgment should, therefore,, be affirmed. All concurred. Judgment affirmed, with one bill of costs.