APPEAL by the defendant, Morton H. C. Foster, from an order of the Appellate Term of the Supreme Court, entered in
the office of the clerk of the county of New York on the 23d day of May, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the defendant and granting a new trial in an action to recover a penalty for a violation of section 97 of the Building Code.
George I. Woolley of counsel [Ira J. Ettinger, attorney], for the appellant.
John P. O'Brien, for the respondent.
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 A.D. 355; affd. on opinion below, 180 N.Y. 527; Post v. Kerwin, 133 A.D. 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.
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 A.D. 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 hoistway 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
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 ...