People v. Murray

76 A.D. 118, 78 N.Y.S. 721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Laughlin, J.:

The principal contention on the part of the defendant is that no duty devolved upon him 'in the premises by law until he was required to act by the fire commissioner, and that the indictment does not charge the-neglect of any duty to which he was assigned by that official. We deem this proposition untenable. The fire commissioner is the head of the fire department. (Greater. N. Y. Charter, Laws of 1897, chap. 378, § 720.) Section 727 of the charter, under which the defendant was appointed inspector of combustibles, provides as follows: “ The fire commissioner shall have power to organize the fire department into such bureaus as may be convenient and necessary for the performance of the duties imposed upon him. One bureau shall be charged with the duty of preventing and extinguishing fires and of protecting property from water used at fires, the principal officer of which shall be called the ‘ chief of department.’ Another bureau shall be charged with the execution of all laws relating to the storage, sale and use of combustible materials, the principal officer of which shall be called ‘ inspector of combustibles.’ The salary of said inspector of combustibles shall be three thousand dollars a year. Another bureau shall be charged with the. investigation of the origin and cause of fires, the principal officers of which shall be called ‘ fire marshals.’ A branch of said bureau shall be located in the borough of Brooklyn.”

Section 389 of the Penal Code provides that “a person who makes or keeps gunpowder, nitro-glvcerine or any other explosive or combustible material within a city or village, * * * in a quantity or manner prohibited by law or by ordinance of -the city or village, is guilty of a misdemeanor.”

Section 763 of the charter, so far as here material, provides as follows: “Yo person shall manufacture, have, keep, sell or give away any gunpowder, blasting-powder, gun-cotton, nitro-glycerine, dualin, or any explosive oils or compounds within the corporate limits of The City of New York, except in the quantities limited, in the manner and upon the conditions herein provided, and under such regulations as there commissioner shall prescribe ; and said commissioner shall make suitable provision for the storage and safekeeping of gunpowder and other dangerous and explosive compounds or articles enumerated under this title, beyond the interior line of low water-mark in The City of Yew York. The said commissioner may issue licenses to persons desiring to sell gunpowder or any of the articles mentioned under this section at retail, at a particular place in said city to be named in said license (provided that the same shall not be in a building used in any part thereof as a dwelling, unless specially authorized by said license), and persons so licensed may have on their premises, if actually- kept for . sale, a quantity not exceeding at any one time, of nitro-glycerine, five, pounds; of gun-cotton, five pounds; of gunpowder, fourteen pounds; blasting-powder, twenty-five pounds; and all of said articles shall be put up in tight metallic canisters, containing or capable of containing, not more than one pound each ; and the persons so licensed shall place on some conspicuous part of the front of the stores or buildings in which they may be licensed to sell powder, or any of the articles named under this section, a sign on which shall be distinctly printed, in characters legible to persons passing such stores or buildings, the words ‘ licensed to sell- gunpowder,’ or designating such other of the articles herein named as is there offered for sale. * * * All gunpowder-, gun-cótton, Masting powder, duali/n, nitro-glyoerine, or other explosive compound, found in violation of this section shall he forthwith seized and safety stored, and he sold, upon three days' notice to the owner or claimant; and the proceeds of such sale, after deducti/ng all expenses, shall he forfeited and paid over to and for the use and benefit of the relief fund of the fare department of The City of New York."

Under these provisions of law, the facts charged in the indictment clearly show that the dynamite, which is an explosive compound, in" so far as it exceeded the quantity authorized by the permit from the fire commissioner, was kept in violation of law, and was subject to seizure, removal and sale, as prescribed in the last sentence of section 763 of the charter herein quoted. The indictment charges that the defendant “ well knew ” that this dynamite was kept on Park avenue in violation of law from the 1st day of November, 1901, to and including the 21st day of January, 1902 .; and it would seem, from the provisions of law quoted, that it was at least his duty, as head of the bureau of combustibles, which is “ charged with the execution of all laws relating to the storage, sale' and use of combustible materials,” to confiscate and remove the same to a place of safety. The defendant’s contention that he was not required to act without the order and direction of the fire commissioner is based upon sections 728, 731 and 771 of the charter.

Section 728 provides that “ the fire commissioner shall have power to select heads of bureaus and assistants and as many officers and firemen as may be necessary, and they shall at all times be under the control of the fire commissioner, and shall perform such duties as may be assigned to them by him, under such names or titles as he may confer * * *.” Section 731, so far as material to the present inquiry, provides that the fire commissioner is “ authorized, empowered and especially charged with the duties of enforcing the several provisions of this chapter,” which embraces all of the sections of the charter to which reference has been made.

Section 771 of the charter (as amd. by Laws of 1901, chap. 466) provides as follows: “ The commissioner and his officers. or agents, under the direction of the commissioner, or either of them, are hereby empowered at any and all times to enter into and examine all buildings, dwelling-houses, livery and other stables, hay boats or vessels, and places where any merchandise, gunpowder, hemp, flax, tow, hay, rushes, firewood, boards, shingles, shavings or other combustible materials, may be lodged, for the purpose of ascertaining all violations of any law or ordinance, and also the places where ashes may be deposited, and upon finding that any of them are defective or dangerous, or that a violation of any law or ordinance exists therein, may deliver a written or printed notice, containing a copy of the provisions in reference thereto, and notice of any violation thereof and notice to remove, amend, or secure the same within a period to be fixed therein. And in case of neglect or refusal on the part of such occupant or of the possessor of such combustible materials or any of them, so to remove, amend, or secure the same withhi the time and in the manner directed by the said commissioner in such notice, the party offending shall forfeit- and pay, in addition to any penalty otherwise imposed, the sum of twenty-five dollars, and the further sum of five dollars for every day’s neglect to remove, amend or secure the same after being so notified. All the expenses of any removal, alteration or amendment as aforesaid, shall be paid in the first instance by the occupant, but shall be chargeable against the owner of such dwelling-house or other building, and shall be deducted from the rent of the same, unless such expense be rendered necessary by the act or default of such occupant or unless there be a special agreement to the contrary between the parties.” These provisions of the charter were in force during part of the period covered by the indictment; and the former provisions were substantially to the same effect. -

It is difficult to see the object of the Legislature in creating a “Bureau of Combustibles” by section 727 of the charter, if it intended by section 728 to provide that the head and all the subordiates of that bureau might neglect the duty of seeing that the law was observed with reference to the storage, sale and use of combustible materials except as specifically directed from time to time by the commissioner. Manifestly such was not the intention of the Legislature. It was undoubtedly designed by section 728 to confer upon the fire commissioner authority to give such orders and directions to the head of the bureau of combustibles, and the employees of that bureau, with reference to the discharge of the duties for which that bureau was created, as in his judgment seemed necessary or proper; but the bureau was not created without authority to act uptil ordered and directed by the fire commissioner. However, whatever authority the fire commissioner may have had over the subordinates of the bureau of combustibles, it was clearly the duty of the head of that bureau to exercise reasonable care and diligence in enforcing the laws relating to the storage, sale and use of combustible materials. When he knew that dynamite was being stored in violation of law, he needed no order or direction of the fire commissioner, Under section 771 of the charter, to enter or examine the place where it was for the purpose of ascertaining violations of the law. That section was designed to authorize such inspection of the places where combustibles or explosives were kept as might be deemed necessary to insure an observance of the law where the proper authorities were without knowledge that the law was being actually violated, and it particularly deals with combustibles of such a nature that without serious damage to the. public a reasonable time for their removal might be given.

It is not essential that we should pass upon the sufficiency of each separate allegation contained in the indictment of a willful neglect of duty by the defendant. If any of these allegations are sufficient to constitute the crime, the indictment is not subject to demurrer. It is, therefore, unnecessary to consider upon this appeal all that has been argued in that regard. It may, however, be observed that it would-seem to be the duty of the chief of combustibles, where he has reason to believe that the law is being violated, to promptly investigate and ascertain and do the various things, so far as necessary, that are authorized to be done by the charter for the purpose of obviating the danger and safeguarding the public; and where access to premises necessary to be examined is denied him for want of authority from the fire commissioner, to apply for such authority.

We are of opinion that this indictment contains “a plain and concise statement of the act constituting the crime, without unnecessary repetition,” as required by section 275 of the Code of Criminal Procedure, and is substantially in the form prescribed by section 276 of that Code. Of course, the duty of making arrests devolves upon the police department, but the duty devolved upon this officer of removing the dynamite when he had knowledge that it was kept in violation of law, and of making an inspection and to use all due and reasonable diligence in taking the steps prescribed by the charter for securing an observance of the law in regard to the keeping or storage of explosive or combustible materials. The law pointed out the steps that he should take upon knowledge of the facts charged in the indictment, and it was not essential that those steps should be stated in the indictment. His duty was, so far as in his power, acting under the authority conferred upon him by the charter provisions, to see that life and property were not endangered by a violation of the laws relating to the storage, sale and use of combustible materials; and this the indictment charges he wholly failed and neglected to perform.

It follows, therefore, that the judgment allowing the demurrer to the indictment was erroneous and should be reversed and the demurrer disallowed, with leave to the defendant, at his election, to plead at such time as may be designated by the trial court.

Pattebsoh, Ingbaham and Hatch, JJ., concurred.

Judgment reversed and demurrer disallowed, with leave to defendant to plead at such time as may be designated by the trial court.