
    The People of the State of New York, Respondent, v. Jay D. Scott, Appellant.
    Argued January 19, 1970;
    decided April 15, 1970.
    
      
      Travis & Johnson for appellant.
    I. A defendant has only to defend against the charge lodged. II. The ordinance is void. (People v. Wood, 151 Misc. 66; People v. Beattie, 96 App. Div. 383; People v. Ringe, 125 App. Div. 592; People v. Gillson, 109 N. Y. 389; Slaughter-House Cases, 16 Wall. [81 U. S.] 36; Bertholf v. O’Reilly, 74 N. Y. 509; Matter of Jacobs, 98 N. Y. 98.) III. The ordinance has no reasonable relation to public health, safety or welfare.
    
      David H. Cohen for respondent.
    I. Section 261 of the Town Law and the Municipal Home Rule Law (art. H, § 10) delegate to the Town of Vestal the authority to enact code section 44-67. (Matter of Cromwell v. Ferrier, 19 N Y 2d 263; Koffman v. Town of Vestal, 23 A D 2d 199, 18 N Y 2d 855; People v. Miller, 304 N. Y. 105; Poczatek v. Zoning Bd. of Appeals of Town of Huntington, 26 A D 2d 556; Town of Schroeppel v. Spector, 43 Misc 2d 290; Town of Eastchester v. Noble, 2 Misc 2d 1034, 2 A D 2d 714.) II. Section 44-67 of the Code of the Town of Vestal per se is constitutional. (Matter of Cromwell v. Ferrier, 19 N Y 2d 263; Monument Garage Corp. v. Levy, 266 N. Y. 339 ; Facci v. City of Schenectady, 13 Misc 2d 247.) III. The application of section 44-67 of the Code of the Town of Vestal to defendant is constitutional. (Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; People v. Miller, 304 N. Y. 105; Bazinsky v. Kesbec, Inc., 259 App. Div. 467, 286 N. Y. 655; People v. Kesbec, Inc., 281 N. Y. 785, 257 App. Div. 941; Bertholf v. O’Reilly, 74 N. Y. 509; Tenement Home Dept. of City of N. Y. v. McDevitt, 215 N. Y. 160; People ex rel. Price v. Sheffield Farms-Slawson Decker Co., 225 N. Y. 25.)
   Burke, J.

Defendant is the owner of a 30-acre tract of land in the Town of Vestal. Twenty acres were leased to his son on February 1,1954 for an indefinite term which can be terminated by a 60-day notice given by either party; the agreed rent is $1 per month as contained in a written lease. On the demised premises, the son has stored approximately 100 motor vehicles which may be described fairly as wrecks.

Subsequent to the execution of the lease, in 1966, 'an ordinance was enacted (later re-enacted as a local law) which prohibits the open storage of inoperable vehicles within the Town of Vestal. The ordinance, in pertinent part, reads as follows:

‘ ‘ A. Purpose.
‘ ‘ A clean, wholesome, attractive environment is declared to be of importance to the health and safety of the inhabitants and the safeguarding of their material rights against unwarrantable invasion and, in addition, such an environment is deemed essential to the maintenance and continued development of the economy of the Town and the general welfare of its citizens. The unrestrained accumulation of motor vehicles not in operating condition is a hazard to such health, safety and welfare of citizens of the Town, necessitating the regulation,, restraint and elimination thereof.
•M, 4fe •Jr *jr *jr
“ 0. Restrictions.
“ Open storage of one (1) or more motor vehicles which are not in operating condition for legal use on the public highways shall not be permitted on private property within the Town of Vestal.
“ D. Notice.
“ The Town Police Department shall give written notice by registered mail to the owner of any property on which there is openly stored one or more such inoperative motor vehicles. Such notice shall provide that the property owner, regardless of ownership of the motor vehicle or vehicles, shall remove the same within ten days from the receipt of such notice.” (Town of Vestal Ordinance, § 4A-67.)

Written notice was given to defendant owner to remove these vehicles, and upon his failure to comply, he was prosecuted for a violation of the town code section prohibiting open storage of one or more inoperable vehicles.

On this appeal, defendant makes two arguments. He contends that the ordinance is invalid insofar as it directs him as an owner who by lease has relinquished the right to' enter upon the property, to remove property placed upon it by the tenant. In addition, he challenges the ordinance as an arbitrary and unreasonable exercise of the police power and unconstitutional. The first argument is dispositive, and we will deal with it first.

A conveyance by lease is generally absolute, limited only by its specific provisions. ‘ ‘ By virtue of the right to exclusive occupation which a tenant acquires by his lease he ‘ becomes entitled to use the premises, in the same manner as the owner might have done, except that he must do no act to the injury to the inheritance. ’ ” (Presby v. Benjamin, 169 N. Y. 377, 379 [citation omitted]). Under some conditions, however, liability may attach to the owner of demised premises (Tenement House Dept. of City of N. Y. v. McDevitt, 215 N. Y. 160; Bertholf v. O’Reilly, 74 N. Y. 509). The rationale behind decisions such as these is that the landlord must exercise sufficient care in the selection of his tenant. If he knowingly lets the premises for a purpose which may give rise to liability, he will not be heard to complain, even though he has done no unlawful act (Bertholf v. O’Reilly, supra). Similarly, he cannot permit an unlawful condition to persist with impunity (Real Property Law, § 231, subd. 2; former Penal Law, § 1146; revised Penal Law, §§ 230.25, subd. 1, 230.40; Tenement House Dept. v. McDevitt, supra). However, where the statute was enacted after the lease had been made, the landlord is under no obligation to exercise a right to terminate a lease in order to escape criminal penalty. Consonant, of course, with the Bertholf rationale, this ordinance, if it had been in effect when the lease was executed, might be enforced against defendant landlord, regardless of any reserved or statutory right of entry. It would then be deemed incorporated (Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 388, 435). But, although the attributes of sovereign power may also permit the Legislature to abrogate existing contracts in certain circumstances (Matter of Farrell v. Drew, 19 N Y 2d 486; Matter of Department of Bldgs. of City of N. Y. [Philco Realty Corp.], 14 N Y 2d 291) that body has not delegated such a power to the town (see Town Law, §§ 130, 261). Unknown at common law, the town is a creature of the Legislature and may not act in excess of the powers conferred upon it by statute (Holroyd v. Town of Indian Lake, 180 N. Y. 318, 322). But we agree with defendant that the question of control is decisive and that he may be held responsible only if he had a right of entry at the time that notice was served upon him. That right must be found in the lease or in a statute. It may not be found in the ordinance either directly or impliedly, for the Legislature has not authorized that kind of interference with the landlord-tenant relationship (see Town Law, §§ 130, 261). Consequently, any attempt by the town to create a right of entry would be invalid.

Legislative action has created a right of re-entry when the premises are used ‘ ‘ for any illegal trade, manufacture or other business ” (Real Property Law, § 231, subd. 1). The People did not prove that defendant was engaged in any ‘1 trade, manufacture or other business ’ ’ with respect to the inoperable ears. Indeed, the town, in its fact statement, admits that the son does not operate a junkyard, and that, as a hobby, he gratuitously accepted these vehicles.

In the absence of a reserved right of entry, the landlord has no common-law right to enter upon the demised premises (see Smith v. Kerr, 108 N. Y. 31, 34; Ernst v. Straus, 114 App. Div. 19). Defendant has reserved such a right only for nonpayment of rent. At the trial, the tenant son testified evasively about his rental payments but stated that he usually gave his father about $20 each month, although that figure varied. Since the reserved rent of $12 per year is less than any single $20 payment, there is no basis in this record to conclude that the reserved right of entry was in existence when the notice was served.

Requiring that the lessor retain, control over the leased premises before he may be held responsible for matters with respect to it is not novel in this court. In negligence cases arising from a defective condition on demised property, liability will not attach when the landlord has surrendered control (see, e.g., Roark v. Hunting, 24 N Y 2d 470; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422). The reservation of the right of entry to make repairs without a concomitant covenant to do so will not permit a finding of sufficient control to hold the landlord (Dick v. Sunbright Steam Laundry Corp., supra; Appel v. Muller, 262 N. Y. 278; Cullings v. Goetz, 256 N. Y. 287). Similarly, the covenant alone will not give rise to the owner’s liability (Lafredo v. Bush Term. Co., 261 N. Y. 323). The owner has been held only when the facts justify a conclusion that control has been retained in fact (De Clara v. Barber S. S. Lines, 309 N. Y. 620; Noble v. Marx, 298 N. Y. 106; Scudero v. Campbell, 288 N. Y. 328). These cases demonstrate a reluctance to find that the landlord has retained control for the purpose of declaring him a tort-feasor. By parity of reasoning, we will not strain to find control in order to attach criminal responsibility.

Although our holding renders a treatment of the constitutional question unnecessary, the draftmanship of this ordinance makes such a discussion advisable. An ordinance promulgated for a rational preservation of the aesthetic senses may be a proper exercise of the police power (Matter of Cromwell v. Ferrier, 19 N Y 2d 263) and within the authority of a town to enact (People v. Stover, 12 N Y 2d 462). If the ordinance is valid on its face, a violator may be convicted when his guilt is established by proof beyond a reasonable doubt (ibid.).

As a regulatory zoning ordinance, enforcement here could be sought by way of a mandatory injunction (cf. City of Buffalo v. Roadway Tr. Co., 303 N. Y. 453, 462) or, as was done herein, by a prosecution for failure to comply with a demand to remove a motor vehicle or vehicles. Because the town elected to prosecute defendant, the ordinance must meet the rigorous tests which have been established for criminal penalties. ‘ ‘ Initially, it must be observed that a strong presumption of validity attaches to statutes and that the burden of proving invalidity is upon those who challenge their constitutionality to establish this beyond a reasonable doubt (see Matter of Van Berkel v. Power, 16 N Y 2d 37, 40, and the cases cited therein), but it must likewise be noted that a statute whose effect is to curtail the liberty of individuals to live their lives as they would and whose justification is claimed to lie in the exercise of the police power of the State must bear a reasonable relationship to, some proportion to, the alleged public good on account of which this restriction on individual liberty would be justified.” (Fensier v. Leary, 20 N Y 2d 309, 314.) A penal enactment must not only be strictly construed, especially where, as here, the act is a malum prohibitum and not a malum in se (People v. Vetri, 309 N. Y. 401, 405; People v. Taylor, 192 N. Y. 398, 400; People v. Werner, 174 N. Y. 132, 134), but it must be reasonable and pellucid as well (People v. Bunis, 9 N Y 2d 1, 4; People v. Adamkiewicz, 298 N. Y. 176, 179). The proscribed conduct must not be unreasonable and should be clearly enunciated so that all those who may be affected may gauge their actions accordingly (People v. Munoz, 9 N Y 2d 51, 56; People v. Firth, 3 N Y 2d 472, 474; People v. Vetri, supra).

With these principles in mind we turn to this ordinance and conclude that it may constitute an arbitrary exercise of the police power. By prohibiting the storage of one inoperable vehicle, the ordinance would prevent a landowner from maintaining a single antique for his own reasons. Such an absolute proscription is not justifiable (cf. Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537). We recognize, of course, that an excessive number of antiques could be proscribed by a properly drawn ordinance. And, consonant with the salutary purpose expressed in the preamble, the town could enact such an ordinance. However, the town here would punish an owner who stores one vehicle. Such a Draconian penalty seems unreasonable and, in addition, to a degree so vague as to cast doubt on its validity.

Indeed, the prohibition against inoperable vehicles is too broad. The modifying language, 1 ‘ for legal use on the public highways ’ ’, is so comprehensive as to include in its prohibitions the storage of a 1970 automobile in perfect functional condition but which may not be used on the public highways because it does not have a validated inspection sticker. Of course, storage imports permanence (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339, 343-344), but an automobile from which the battery and/or the license plates have been removed for the winter is certainly in storage.

■ Even disregarding the modifying language, however, so that the potential coverage is limited somewhat, the term ‘ ‘ inoperative,” which is not further defined, is rather vague. Minimum due process requires that the prohibition must ‘ ‘ be spelled out in words even more explicitly, so that the citizen may receive unequivocal warning before conduct otherwise innocent may be made the cause of fine or imprisonment ” (People v. Munoz, supra, at p. 56 [citation omitted; emphasis supplied]). Standing alone, inoperative ” does not satisfy that requirement. Given its ordinary meaning (Bright Homes v. Wright, 8 N Y 2d 157, 162), it necessarily includes any minor defect as a result of which the vehicle cannot be run until repaired. Such a standard is variable. It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” (Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 [citations omitted].) Consequently, we think this ordinance could be found to be unconstitutional.

Accordingly, the judgment of the Broome County Court should be reversed and the information dismissed.

Scileppi, J. (dissenting).

I dissent and vote to affirm. The substance of the majority’s opinion is that the defendant landlord’s inability to control the unlawful act of his tenant should preclude the imposition of any penalty upon him. I am not at variance with this position. It is offensive to our traditional sense of justice to hold that a person can be penalized for conduct over which he has no control; but it is my opinion that the defendant landlord in this case had such control and, therefore, could and should have re-entered the premises to discontinue the unlawful acts of his tenant.

While it is true that section 231 (subd. 1) of the Real Property Law speaks only in terms of a landlord’s right to re-entry when “ any illegal trade, manufacture or other business ” is being conducted on his premises, I would not give the statute such a strict construction so as to limit it only to profit making ventures.

The majority is limiting the imposition of a penalty against a landlord for acquiescing in the tenant’s unlawful use of his land only in those cases where the landlord has the right of re-entry. I am of the view, however," that by a reasonable construction of the statute, or even by common-law right, every landlord has the right to re-enter his premises to discontinue an unlawful use of his property whenever such use, with knowledge thereof, will result in punishment to him. Moreover, this should not depend upon whether the unlawful activity be characterized as a business ” or, as is incredibly denominated in the instant case, a ‘1 hobby ’ ’.

In People ex rel. Jay v. Bennett (14 Hun 63) the First Department, in construing the predecessor statute to section 231, which contained the identical relevant language (L. 1873, ch, 583), stated: ‘ ‘ This statute was intended not only to prevent the use of premises for an unlawful purpose, but to protect the landlord from the consequences of allowing such unlawful purpose to continue. It gave him in other words the power to put an end to it, and thus to shield himself from any penalty for knowingly permitting the premises to be used as indicated.” (Supra, at p. 66; emphasis supplied.)

Surely if a statute were to impose a penalty on a landlord for knowingly permitting a tenant to store narcotics on his property, it would be unreasonable to deny the landlord the right to re-enter when such conduct could result in a penalty to the landlord; and, of course, it should make no difference whether the tenant be storing the narcotics for sale or for his own personal use.

Even assuming that the majority’s strict interpretation of the statute was correct, it is my view that the judgment should nevertheless be affirmed.

The majority takes the position, relying upon Bertholf v. O’Reilly (74 N. Y. 509) that, if the defendant had knowingly leased the premises to his son for a purpose which was unlawful at the time the lease was executed, then the defendant would have no cause to complain. The opinion further states, however, that in the instant case, the lease having been executed before the enactment of the ordinance, no sanction can be imposed upon the defendant. The majority recognizes, however, that the owner 1 ‘ cannot permit an unlawful condition to persist with impunity ’ ’. This is precisely what the defendant was guilty of in the case at bar. Although the ordinance was not enacted until April 13,1966, long after the lease was executed, defendant took no action whatsoever until the day of his arrest—almost a year later. Since the lease provided that the tenancy could be terminated at the whim of either party by merely giving 60-day written notice, defendant’s inaction for almost a year while the ordinance was effective, in and of itself, is sufficient to warrant an affirmance (Tenement House Dept. of City of N. Y. v. McDevitt, 215 N. Y. 160).

Finally, I fail to perceive how the conclusion of the majority, that there, was no right of re-entry by the owner, can be reached on the flimsy and clearly incredible facts relied upon to find a landlord-tenant relationship between father and son. When considering the relationship of the parties, their testimony at the trial, and the terms of the agreement itself, only one reasonable conclusion can be drawn—the lease was a sham and, therefore, the defendant had a right to re-enter at anytime.

As to the majority’s rather inconclusive, gratuitous discussion of the constitutionality of the ordinance, suffice it to say that in reading both the “ Purpose ” and the ordinance itself, it is clear that the enactment is, on its face, a reasonable exercise of the police power (People v. Stover, 12 N Y 2d 462). With regard to the possibility of the ordinance’s application to the “ storage ” of a single vehicle on the owner’s land, it might well be held in such a case that the ordinance is unconstitutional as so applied. This, however, is not the instant case. On the contrary, we are involved herein with the storage of 100 junked vehicles—precisely the kind of eyesore that the ordinance was reasonably promulgated to prevent.

Accordingly, the judgment of the Broome County Court should be affirmed.

Judge Gtibson concurs with Judge Burke ; Chief Judge Fuld and Judge Bergan concur solely on the ground that the defendant, not having the right to enter the property on which the vehicles were stored in order to remove them, may not be convicted for his failure to do so; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Breitel and Jasen concur.

Judgment reversed, etc.  