Fire Department v. Buffum

By the Court. Daly, J. There can be no doubt that the building put up by the defendant was in violation of the second and third sections of the act. (Laws of 1849, p. 118.) The act requires that all buildings erected within certain limits shall be constructed of brick, stone, or other fire proof material. This was a building within the meaning of the act, and was not so constructed. It was of three stories. The first was composed entirely of wood and glass, and the rear, above the first story, was of the same material. The proposed evidence was inadmissible. The consent of the fire warden, if it had been obtained, would have been no protection to the defendant. A fire warden could not dispense with the requisitions of the statute, nor authorize the putting up of a prohibited structure. Whether the lower part was finished in the manner the defendant told the warden he intended to finish it, or what the warden said to the defendant, was equally immaterial. This was not an action for damages, which could be increased or diminished by the jury, but an action to recover a specific penalty for putting up a building in violation of the fire laws. The only thing to be ascertained was, whether the defendant had put up such a building, for if he had, the penalty was incurred, whoever may have advised him to do it. There was no ground for the motion for a nonsuit. That [518] motion was founded upon the alleged insufficiency in the notice. But the plaintiff was entitled to recover a penalty of $500, independently of any notice, the proof of which was material only in respect to the additional penalties claimed for the continuation of the violation. The plaintiff, therefore, was entitled to recover the $500 penalty, though his notice may have been defective. The material point in- the case is, whether the notice given was sufficient to entitle the plaintiff to the additional penalties. Where a statute prescribes the form, or the substance of a notice, it must be fully and strictly complied with. (Reg. v. Cooke, Cowp. 30; Dorsan v. Gill, 1 East, 64; Goss v. Jackson, 3 Esp. 198.) No form of notice is prescribed by the act, nor does it declare what it shall contain, otherwise than that it shall be a notice to the party to remove the violations. The notice given was certainly very general. Except in its being directed to the defendant, at the place, it did not point out where the building was situated. He was required to remove, and the building itself was described as, a piazza. Still we cannot say that it was not sufficient to apprise the defendant that he was required to remove the building he had put up in violation of the act. This is a remedial statute, and both in respect to the cases intended to be embraced by it, and the form of proceeding under it, it is to be liberally construed. (Johns v. Johns, 3 Dow’s R. 15; Atcheson v. Everitt, Cowp. 391; Sickles v. Sharp, 13 Johns. 497.) If the defendant wished to avail himself of the alleged insufficiency in the notice, he should have asked the judge to instruct the jury, that if they believed, from the notice and from all the circumstances in the case, that the defendant was not apprised and did not know what he was called upon to remove, that then the plaintiffs could not recover the additional penalties. But as the case comes before us, we cannot say, as matter of law, that the notice was insufficient. Judgment affirmed.