
    The Tenement House Department of the City of New York, Plaintiff, v. Katie Moeschen, Defendant.
    (Supreme Court, New York Special Term,
    September, 1903.)
    New York city — Illegality of a school sink in a tenement house — Mandatory injunction — Res adjudicaba.
    Where the tenement house department of the city of New York brought an action in the Supreme Court to compel a tenement house owner to remove therefrom a school sink and substitute water closets as required by the Tenement House Act (L. 1901, ch. 334, § 100) and it appeared that in a prior action between the same parties in the Municipal Court of said city for civil penalties for the same violation the tenement house owner had raised and been defeated on all the issues raised in the present action, the Supreme Court, deeming that judgment a final adjudication between the parties, made an order, before trial of this action, enjoining the defendant from further maintaining the school sink and requiring her to substitute water closets as required by said act; but; in view of constitutional questions raised by the defendant as to the validity of said act, suspended enforcement of the order until after the hearing of any appeal speedily taken therefrom or until after the hearing of an appeal already taken from the judgment of the Municipal Court provided the appeal was prosecuted with diligence.
    Motion" for an injunction.
    Matthew C. Fleming, for plaintiff.
    Adolf Bloch (Roger Foster and William L. Mathot, of counsel), for defendant.
   Greenbaum, J.

The plaintiff moves for an order enjoining the defendant from maintaining a school sink on the premises owned by her at No. 332 East Thirty-ninth street, borough of Manhatl an, and directing her to substitute therefor, either in the yard or house, one water closet for every two families in the tenement house built on said lot. The plaintiff shows in its complaint and by affidavits that prior to April 12, 1901, “ said tenement house was, and since said date has been, continuously occupied and fitted up to be occupied as the residence of three or more families — nineteen families in all — living independently of each other and doing their cooking on said premises, but having a common right in the halls, stairways, yards and priviesthat at the times mentioned in the complaint there was and still is a sewer through East Thirty-ninth street in front of said tenement-house and that a connection with the sewer was at all times and is practicable; that there is and has been during the period mentioned a school sink on the said lot, and “ that it is the sole receptacle of fcecal matter provided for the use of the occupants of said building; that defendant has been duly notified to remove said school sink and to provide water closets, but that she has failed and refused to comply with said notice; that before the commencement of this action plaintiff brought an action in one of the Municipal Courts of the city of New York, a court of competent jurisdiction, against the defendant for the recovery of the civil penalty provided by the Tenement.House Act, for her failure to comply with the. provisions of section 100 of said act, in respect of the identical alleged violation set out in the complaint in this action; that upon a jury trial of said action all the defenses and objections here raised were duly interposed; that a judgment was duly rendered against the defendant for the sum of fifty dollars and costs, as a penalty for said violation. The defenses that were presented in the Municipal Court and that are here reiterated are, that the school sink was originally constructed “ in accordance to and obedience with the orders, rules and regulations of the department of health and of the Sanitary Code then in force;” that the statute is void because it compels the defendant to incur an unreasonable and unwarrantable expense equal “ to her entire equity in the property ” affected; that in the opinion of the best sanitary experts the alleged improvements, if made, will put the premises in a less sanitary condition than at the present time; that the act contemplates the taking of property without compensation, and is, therefore, unconstitutional and void; that “ the Legislature cannot, in the ostensible exercise of its police powers, make that a nuisance which is not so in fact;” that “the statute is a violation of defendant’s constitutional guaranty of liberty.” Defendant further contends that “ to enable the court to determine the reasonableness of the statute there must be evidence before it for the purpose of enabling it to determine what may be the result of its enforcement,” and that, in any event, the plaintiff should be remitted to a trial of this action instead of the summary remedy here sought. The Tenement House Act (L. 1901, ch. 334) went into effect on April 12, 1901. Section 100 of this act provides that all school sinks, such as defendant concededly maintains upon her premises, shall be completely removed before January 1, 1903, and “ shall be replaced by individual water-closets of durable non-absorbent material, properly sewer connected, and with individual traps, and properly connected flush tanks providing an ample flush of water to thoroughly cleanse the bowl.” The section also contains other provisions with reference to the character, size, requirements and location of the water closets to be substituted. Section 126 of the act (as amd. by L. 1903, ch. 179) provides, among other things, for the recovery of a civil penalty from the owner of any tenement house for any violation of said act or “ any notice or order of the department charged with its enforcement.” Section 128 (as amd. by L. 1903, ch. 179) authorizes the tenement house department, “ In case any tenement house * * * is * * * maintained in violation of any provision of this act or of any order or notice of the department-charged with its enforcement,” to institute “ any appropriate action or proceeding * * * to restrain, correct or abate such violation or nuisance ” and to prevent the occupation of said tenement house.” The same section further provides : In any such action or proceeding, said department may, by affidavit setting forth the facts, apply to the supreme court or to any justice thereof, for an order granting the relief for which said action or proceeding is brought, or for an order enjoining all persons from doing or permitting to be done any work in or about such tenement house, building, structure or lot, or from occupying or using the same for any purpose, until the entry of final judgment.” It is thus evident that the act in question provides summary and drastic measures for its enforcement. It has undoubtedly been the practice of courts to hesitate before granting summary relief upon a motion and to afford parties litigant full opportunity of a trial of the issues. When, however, there is no dispute upon the questions of fact relevant to the issue, there seems to be no valid reason why the course of justice should not be speeded by a determination upon a motion. The parties to this action have had their day in a court of competent jurisdiction, where all the defenses here set up were, or could have been presented, and it seems to me that, until reversed, the judgment of the Municipal Court is a binding and conclusive adjudication between the parties as to all controverted or issuable facte. Nor is the action for a penalty inconsistent with the present action. As stated by the learned justice in Fire Department v. Koltowsky, Daily Register, August 25, 1885, “ the remedies are independent one of the other. The penalty is imposed as a punishment to the offender. The additional right to remove is given as a protection to the city and its inhabitants.” The illegality of the maintenance of the school sinks having been established in an action where the defendant, among other matters, presented testimony touching the question of the alleged unreasonableness of the provisions of the statute, I do not think the defendant should be permitted to try the identical issues anew in this court. The conclusion to which I have come is strengthened by the fact that upon the trial in the Municipal Court it was stipulated between the parties “ that defendant’s school sink is flushed at regular intervals at least once a day, but that if not properly flushed it would be dangerous to health; that said school sink was put in prior to 1890, in accordance with an order of the board of health; that school sinks are not self-flushing,- and that if not properly flushed are dangerous to health.” In view of these admissions and irrespective of the reasons already given, the reception of testimony bearing upon the reasonableness of the enactment would seem to be futile. The concession that school sinks, if not properly flushed, are dangerous to health would, in my judgment, justify the. court in holding that the Legislature did not exceed its police powers by the enactment which is here attacked. If my contention be sound, then, to quote from the opinion in Fire Department v. Gilmour, 149 N. Y. 453, “ it would be no defense to a party, who had violated the law, to show that in his particular case, owing to exceptional circumstances, the regulation was unnecessary or unreasonable.” The motion will, therefore, be granted, but inasmuch as the provisions of the act here assailed have not yet received appellate consideration, I have concluded to stay the enforcement of the order that may be entered herein until the determination of the appeal that has been taken from the Municipal Court judgment and from any appeal that may be taken from this order, provided said appeals are prosecuted without any delay.

Ordered accordingly.  