Hayes v. Brennan

45 Misc. 413, 90 N.Y.S. 453

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1904
• Status: Published

Opinion

Bischoff, J.

By this judgment the defendant has been charged with liability for a penalty by reason of his failure to obey an order of the fire commissioner, requiring him to provide in his hotel “ direct means of communicating alarms of fire from said premises ” to fire department headquarters, the power of the commissioner to make the order being such as is given by section 762 of the charter. As material, the section reads: “ The owners and proprietors of all manufactories, hotels, tenement houses * * * office buildings * * * warehouses * * * theatres and music halls, and the authorities or persons having charge of all hospitals and asylums, and of the public schools * * * churches and other places where large numbers of persons are congregated for purposes of worship, instruction or amusement, shall provide such means of communicating alarms of fire, accident or danger, to the police and fire departments, respectively, as the fire commissioner or police board may direct.”

Whether the justice correctly excluded proof offered by the defendant .to show the unreasonableness of the order, as applied to the plaintiff’s hotel, is not material as we view the case. Possibly the general description of places “ where large numbers of persons are congregated for purposes of worship, instruction or amusement,” might be deemed to apply to a hotel where they would not fit a warehouse or an office building; hence the Legislature might be said to have deemed the latter kind of buildings the proper subject of such an order, by reason of their very nature, while the propriety of the' order in the case of a hotel would depend upon the number of persons who sought amusement, or possibly instruction, upon the premises. To exclude the question of reasonableness in this case would involve the proposition that a hotel, per se, cannot be amusing to very many people, but we are not called upon to decide the question, since, in any event, the order given by the plaintiff was not sufficiently definite to be enforced. The power of the commissioner was limited to the making of an order which should direct the means of communicating alarms, and, to support a case for a penalty, the means directed should be apparent. Here the order left it to the defendant to say what means he was to adopt, aided by his own idea of the copimissioner’s understanding of “ direct means,” whether the maintenance of a swift runner to carry the alarm, or the installation of an electric device operated by heat from the conflagration and designed to give a signal within the department’s headquarters. Either means would be “ direct,” in accordance with the extent to which the term was to be limited by the department’s understanding of what was an indirect fire alarm, but the “means of communicating ” the alarm was thus left wholly to conjecture so far as the defendant was concerned.

The order was not made in compliance with the reasonable meaning of the statute, and the failure to comply with it was no violation such as could support an action for the statutory penalty.

Freedman, P. J., and Fitzgerald, J., concur.

Judgment reversed, with costs, and complaint dismissed.