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Maiorca v. Myers

Supreme Court of New York, Appellate Division

March 12, 1909

MAIORCA
v.
MYERS.

Appeal from Special Term, Westchester County.

Action by Giovanni Maiorca, by Rosalia Maiorca, guardian ad litem against Frederick S. Myers. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Labor Law (Laws 1897, p. 481, c. 415) § 82, requires such fire escapes as may be deemed necessary by the factory inspector to be provided on factories three or more stories high. Revised New York City Charter 1901 (Laws 1901, p. 179, c. 466) § 407, makes all existing laws relating to the construction, etc., of buildings effective in the city, with power to the aldermen to amend, etc. Held, that section 82 is mandatory, and applicable to New York City, though there its enforcement is entrusted to the department of buildings, instead of the factory inspector, and that the aldermen cannot dispense with the requirement for fire escapes and the owner of a factory building is liable for injury to an employé who was compelled to jump from the third story to avoid burning, where no fire escapes were provided.

Hamilton R. Squier, for appellant.

Joseph Pascocello, for respondent.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.

MILLER, J.

This is a suit for injuries sustained by the plaintiff in jumping from a third-story window of a factory building which was on fire. The defendant was the owner of the building. The plaintiff avers that, to escape the fire, she was compelled to jump from said window by reason of the negligence and carelessness of the defendant " in not providing fire escapes or other means of escape."

Section 82 of the labor law (Laws 1897, p. 481, c. 415), in force at the time of the accident, provided:

" Such fire escapes as may be deemed necessary by the factory inspector shall be provided on the outside of every factory in this state consisting of three or more stories in height."

Section 407 of the Revised Charter of 1901 (Laws 1901, p. 179, c. 466) provided:

" The building code which shall be in force in the city of New York on the first day of January, 1902, and all then existing provisions of law fixing the [115 N.Y.S. 924] penalties for violation of said code, and all then existing laws affecting or relating to the construction, alteration or removal of buildings or other structures within the city of New York are hereby declared to be binding and in force in the city of New York.*** The board of aldermen shall have power from time to time to amend said building code and said laws and to provide therein for all matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures erected or to be erected in the city of New York."

The appellant argues upon the authority of City of New York v. Trustees, 85 A.D. 355, 83 N.Y.Supp. 442, affirmed on the opinion below 180 N.Y. 527, 72 N.E. 1140, that the general statute does not apply to the city of New York; that, as no ordinance requiring fire escapes to be placed on factory buildings of three or more stories in height is pleaded, the complaint does not state a cause of action; and that the general act requires only that fire escapes be provided in the discretion of the factory inspector. It is not disputed that, at common law, there was no duty resting upon owners as such to provide fire escapes. Pauley v. S. G. & L. Co., 131 N.Y. 90, 29 N.E. 999,15 L.R.A. 194; Huda v. Am. Glucose Co., 154 N.Y. 474, 48 N.E. 897,40 L.R.A. 411.

The provision of the factory law, quoted supra, is mandatory ( Arnold v. Nat. Starch Co. [N. Y.] 86 N.E. 815), and in express terms applies to " every factory in this state consisting of three or more stories in height." The case of City v. Trustees, supra, decided that the superintendent of buildings in the city of New York, not the state factory inspector, had jurisdiction over the subject of fire escapes in said city; and this, for the plain reason that section 647 of the charter (Laws 1897, p. 224, c. 378) and the special local laws continued in force by it were not repealed by the general law. The city had its own scheme of supervising the construction, alteration, etc., of buildings. Its department of public buildings had jurisdiction over the subject, and it was not intended by the general law to interfere with that jurisdiction, or to vest it in a state officer; but that is far from saying that the general law did not in any respect apply to the city of New York. Said section 647 of the charter of 1897 provided:

" The provisions of such building code shall be in conformity with and be subject to all general laws of the estate (sic) concerning, affecting, or relating to buildings, or ...

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