Tenement House Department v. Whitney

84 Misc. 54, 145 N.Y.S. 1011

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1914
• Status: Published

Opinions

Bijur, J.

This action was brought to recover a penalty of fifty dollars from the lessee of a tenement house for a violation of the following provision of the Tenement House Law:

“ § 109. * * * No tenement house or any part thereof or the lot or premises thereof shall he used for the purpose of prostitution or assignation of any description. ’ ’

The liability of this respondent was predicated upon section 124, which is as follows:

‘ ‘ § 124. * * * The owner of any tenement house or part thereof, or of any building or structure upon the same lot with a tenement house, or of the said lot, where any violation of this chapter or a nuisance exists, and any person who shall violate or assist in violating any provision of this chapter, or any notice or order of the department charged with its enforcement, shall also jointly and severally for each snch violation and each snch nuisance be subject to a civil penalty of fifty dollars.”

The learned court below held that as defendant-respondent was a lessee and not an owner, he could not be held liable under the first clause of the section, and in this conclusion I concur. It does not seem to be seriously contended by the appellant that this lessee either “ violated or assisted in violating’ ” section 109. The proof is conclusive that neither he nor the janitor, whom he employed to take charge of the premises, had knowledge or intimation that the premises were or would be so used until after the violation had been accidentally discovered by the police.

The intention of the legislature must be gathered from the statute in the form in which it is found. It forbids the use of a tenement house for the purpose of prostitution. It impliedly creates another offense, namely, permitting such use of a tenement house, and designates the person to be held responsible for permitting such use, namely, the owner. It would, no doubt, have been quite competent for the legislature to have included a lessee in the class upon which is placed the duty of seeing to it that the premises are not permitted to be used for a purpose forbidden by the act, but the omission to so include him is significant.

Although the corporation counsel urged upon the learned court below the desirability of passing upon the question whether an owner might be held liable where the premises were used in violation of the act without his knowledge, that point is in nowise pre- • sented by the case at bar. Consequently, we express no opinion thereon.

Judgment affirmed, with costs.

Page, J., concurs.