City of New York v. Foster

Ingraham, P. J.: The question presented on this appeal is, whether section 97 of the Building Code is applicable to buildings constructed before the Building Code was adopted. The Building Code, as at present in force, was adopted on October 24, 1899, under the authority contained in section 647 of the Greater New York charter (Laws of 1897, chap. 378). By section 407 of the charter of 1901 (Laws of 1901, chap. 466) there was continued in force the Building Code in force on January 1, 1902. By section 407 of the charter, as amended by chapter 602 of the Laws -of 1904 and by section 2 of chapter 628 of the Laws of 1904, the Building Code in force January 1, 1902, is made binding and in force in the city of New York and shall continue to so binding and in force until amended as therein provided. This Code thus enacted and confirmed has the same effect as an act of the Legislature. (City of New York v. Trustees, 85 App. Div. 355; affd. on opinion below, 180 N. Y. 527; Post v. Kerwin, 133 App. Div. 404.) The Building Code thus adopted contained general provisions for the erection of new buildings and the alteration of existing buildings. Sections 3 to 79, inclusive, appear to apply mainly to the erection of new buildings or the alteration of existing buildings. Part 14, section 80, applies to shed coverings for the protection of pedestrians whenever buildings shall be erected or increased to over sixty-five feet in height, and also regulates the scaffolding and other incidental appliances in relation to the erection and alteration of 'buildings. The subsequent sections apply to the construction and alteration of buildings and the use and maintenance of existing buildings. — 260 — Sections 84 to 88, inclusive, apply to existing buildings and regulate the furnaces and boilers, registers for hot air furnaces, drying rooms and ranges and stoves, and are evidently intended to afford protection from fire. Section 89 is made to apply to buildings thereafter erected and to a building then erected in which gas or steam is used for lighting or heating. And sections 90 to 94, inclusive, relate to roofs, cornices and tanks. Some of these sections expressly apply to buildings thereafter constructed, and others would seem to apply to existing buildings. Part 18 of the Building Code, being sections 95 to 101, inclusive, applies to elevators, hoistways and dumbwaiters. Section 95 provides that “ in any building in which there shall be any hoistway or freight elevator or wellhole not inclosed in .walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the Department of Buildings,” and also provides that “¡such guards or gates shall be kept closed at all times, except when in actual use, and the trapdoors shall be closed at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.” The construction of this section was before the courts in Racine v. Morris (136 App. Div. 467; affd., 201 N. Y. 240). In the Court of Appeals it was said: “ Section 95 of the Building Code imposed likewise new duties upon the owners and occupants of buildings. * * * The section is in its nature and effect salutary and remedial. ■ It was adopted, in order that it might effect added and- desired security and safety to lives and limbs. It is incumbent upon us to give it a construction as broad and liberal as a reasonable and fair understanding of its language will permit. * * * It applies to ‘ any building in which there shall be any hoist-way or .freight elevator or well hole not enclosed in walls constructed’ as therein provided.” The court thus held that this section applies to existing buildings, and imposes the duty upon the owners of such buildings to comply with its provisions. Section 97 of the Building Code is the section upon which — 261 — this action is based. It provides that “ all dumb-waiter shafts, except such as do not extend more than three stories above the cellar or basement in dwelling houses, shall be inclosed in suitable walls of brick or with burnt clay blocks, set in iron frames of proper strength, or fireproof blocks strengthened with metal dowels, or such other fireproof material and form of construction as may be approved by the Commissioner of Buildings having jurisdiction.” This provision applies not to the building itself but to dumbwaiter shafts in buildings. It is clear that the dumbwaiter shafts in the defendant’s building were within the description contained in this section, and it is conceded that the dumbwaiter shafts do not comply with its requirements. It is claimed, however, that this provision does not apply to dumbwaiter shafts in existing buildings, and that as this building equipped with these shafts was in existence when the ordinance was first adopted, its owner was not required to make these dumbwaiter shafts fireproof as therein required. It is also claimed that to make this statute apply to existing buildings would give it a retroactive effect. The language of the section is not retroactive. It makes no building then existing an illegal structure, and imposes no obligation upon the owner of the building to reconstruct it. The mandate is that “ all dumb-waiter shafts * * * shall be inclosed in suitable walls of brick” or other fireproof construction. “All” certainly includes those existing, as well as those in buildings to be erected in the future. ' It would include a dumbwaiter shaft constructed in an existing building; and the object sought to be attained is clearly to protect buildings from fire so as to avoid endangering the lives of the occupants and to prevent the unnecessary destruction of property. The definition of a retrospective law by Judge Story in Society, etc., v. Wheeler (2 Gall. 104, 139) is as follows: “Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.” I do not think that to apply this section 97 of the Building Code to all buildings existing after its passage — 262 — would bring it within this definition of a Retrospective law. It neither takes away nor impairs vested rights acquired under existing laws. It necessarily speaks solely in relation to the future. It says to the owner of a building in which there are existing dumbwaiter shafts, hereafter if you wish to maintain these dumbwaiter shafts they must be inclosed as required by the section. It imposes a duty upon the owner of buildings to make these dumbwaiter shafts fireproof; it creates no-new obligation, imposes no new duty, attaches no new disability in respect to transactions or considerations already past. But the obligation imposed upon the owner, if he wishes to maintain these dumhwqiter shafts in the future, is to inclose them as required by the section in question. It imposes an obligation upon the owner of buildings with dumbwaiter shafts, as section 95 imposed an obligation upon the owner of a building in which there is a hoistway or freight elevator, and this obligation the Court of Appeals in the Racine Case {supra) has held to apply to all buildings, whether constructed before or after the passage of the ordinance. In Tenement House Dept. v. Moeschen (179 N. Y. 325; affd. sub nom. Moeschen v. Tenement House Dept., 203 U. S. 583) section 100 of the Tenement House Act (Laws of 1901, chap. 334), which required that in all existing tenement houses certain sinks and privy vaults should be removed and replaced by individual water closets of a specified character, was held to be constitutional, the court saying that that act of the Legislature was “in part' preventive legislation looking to the preservation of the public health in the future; a system of drainage is attacked which is highly dangerous and which should be surrounded by every reasonable safeguard known to science and experts in plumbing,” and that the fact that the act is applicable to existing buildings. did not affect its validity. In speaking of an act. regulating manufacturing establishments which related to hoisting shafts and automatic doors and elevators and to fire escapes on the outside of factories, the court said: “Has the Legislature no right to enact laws such as this statute regarding factories unless limited to factories to be thereafter' built 'l Because the factory Was already built when the act was passed., was it beyond the legis — 263 — lative power to provide such safeguards to life and health as against all -owners of such property unless upon the condition that these expenditures to be incurred should ultimately come out of the public purse ? I think to so hold would he to run counter to the general course of decisions regarding the validity, of laws of this character and to mistake the foundation upon which they are placed. * "x" * I do not see that the principle is substantially altered where the case is one of an existing building and it is to. be subjected to certain alterations for the purpose of rendering it either less exposed to the danger from fires or its occupants more secure from disease.” And in Health Dept. v. Rector, etc. (145 N. Y. 32) it was expressly held that the Legislature may direct that certain improvements or alterations shall be made in existing houses at the owner’s expense where it clearly appears that it tends in some plain and appreciable manner to guard and protect the public and that a provision of the New York Consolidation Act declaring that tenement houses in the city previously erected should be furnished by the owners with water when they should be directed to do so by the board of health is a proper exercise of the police power of the State both as a guard to the public health and as a protection against fire. These provisions of law all relate to the future maintenance and use of buildings and the appliances in them provided for the use of occupants. The section here in question requires that if the dumbwaiter shafts are to be maintained they must be altered to meet its requirements, and it seems to me that the provision, applying as it does to all dumbwaiter shafts — which on its face would include those in buildings already constructed as well as those in buildings thereafter constructed, requiring them to be inclosed with this fireproof material— creates an obligation resting upon the owners of buildings containing such dumbwaiter shafts which is within the police power of the State and that the failure by the defendant to comply with the requirements of the building department was a violation of this obligation and justified the imposition of the prescribed penalty. It follows, therefore, that the determination of the Appellate Term was correct, and it must be affirmed and judgment abso — 264 — lute ordered under the stipulation as demanded fey plaintiff, with costs in this court and in the Appellate Term. McLaughlin, Clarke and Dowling, JJ., concurred; Scott, J., dissented.