
    Giovanni Maiorca, an Infant, by Rosalia Maiorca, His Guardian ad Litem, Respondent, v. Frederick S. Myers, Appellant.
    Second Department,
    March 12, 1909.
    Master and servant — negligence — failure tó equip factory with, fire escapes — municipal corporation — section 82, Labor Law, applies to city of Mew York.
    The owner of a factory building in the city of New York, three or more stories in height, who has failed, to equip it with fire escapes, as required by section 83 of the Labor Law, is liable for in j uries received by an employee who was obliged to jump from a window during a fire.
    Section 83 of the Labor Law, being a general act, applies to factories in the city of New York, except that, by virtue of the city charter, the enforcement of. the act is vested in the department of buildings instead of in the State Factory Inspector.
    Appeal by the defendant, Frederick S. Myers, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westcliester on the 11th day of May, 1908, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the amended complaint.
    
      Hamilton R. Squier, for the appellant.
    
      Joseph Pascocello, for the respondent.
   Miller, J.:

This is a suit for injuries sustained by the plaintiff in jumping from a third-story window of a factory building which was on fire. The defendant was the owner of the building. The plaintiff avers that, to escape the fire, he was compelled to jump from said window by reason of the negligence and carelessness of the defendant in not providing fire escapes or other means of escape.” Section 82 of the Labor Law (Laws of 1897, chap. 415), in force at the time of the accident, provided: “ Such fire escapes as may be deemed necessary by the factory inspector shall be provided on the outside of every factory in this State " consisting of three or more stories in height.” Section 407 of the revised charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chaps. 602, 628).pro-vided : “ The building code which shall be in force in The City of 'Hew York on the first day of January, nineteen hundred and two, and all then existing provisions of law fixing the penalties for violation of said code, and all then existing laws affecting or relating to the construction, alteration or removal of buildings or other structures within The City of Hew York are hereby declared to be binding and in force in The City of Hew York. * * * The board of aldermen shall have power from time to time to amend said building code and said laws and to provide therein for all matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures erected or to be erected in The City of Hew York.”

The appellant argues upon the authority of City of New York v. Trustees (85 App. Div. 355; affd. on opinion below, 180 N. Y. 527) that the general statute does not apply to the city of Hew York; that, as no ordinance requiring fire escapes to be placed on factory buildings of three or more stories in height is pleaded, the complaint does not state a cause of action ; and that the general act requires only that fire escapes be provided in the discretion of the Factory Inspector. It is not disputed that, at common law, there was no duty resting upon owners as such to provide fire escapes. (Pauley v. S. G. & L. Co., 131 N. Y. 90; Huda v. American Glucose Co., 154 id. 474.)

The' provision of the Labor Law, quoted supra, is mandatory (Arnold v. Nat. Starch Co., 194 N. Y. 42), and in express terms applies to every factory in this State consisting of three or more stories in height.” The case of City of New York v. Trustees (supra) decided that the superintendent of buildings in the city of Hew York, not the State Factory Inspector, had jurisdiction over the subject of fire escapes in said city; this, for the plain reason.that section 647 of the charter (Laws of 1897, chap. 378) and the special local laws continued in force by it, were not repealed by the general law. The city had its own scheme of supervising the construction, alteration, etc., of buildings. Its department of public buildings had jurisdiction over the subject and it was not intended by the general law to interfere with that jurisdiction or to vest it in a State officer, but that is far from saying that the general .law did not in any respect apply to the city of Hew York. Said section 647 of the charter of 1897 provided: “ The provisions of such building code’ shall be in conformity'with and be subject to all general laws of the estate (sic) concerning, affecting, or relating to buildings, or classes of buildings, or other structures.” In that case, Mr. Justice O’Bbieh, writing for the court, said: “ If the Municipal Assembly had seen fit to provide in the Code that no factories in New York city should be provided with fire escapes, perhaps this provision would be void as inconsistent with the Labor Law.”

It seems to me that the Legislature has provided by general law that fire escapes shall be provided on all factory buildings in the State three or more stories in height. It intrusted the enforcement of that law to a State officer, except in the city of New York, wherein by its charter jurisdiction over that subject was vested in its department of buildings; but the board of aldermen can no more dispense with the requirement that some kind of a fire escape shall be provided on such’ buildings in the city of New York than 'the Factory Inspector can do it in the rest of the State.

The said charter provision, vesting the jurisdiction over the subject in the department of buildings,' is not necessarily exclusive. While it was not repealed by the general law, both it and the general law should be construed together. The general law in terms applies to every building of the kind in the State, and I can perceive no reason why it does not apply to the city of New York, except in so far as a different administrative scheme is provided by special act. It certainly can hardly be supposed that the Legislature intended to require fire escapes on all factory buildings three or more stories in height outside of the city of New York and to allow a local legislative body in said city, where the danger is the greatest, to dispense with that requirement. It may be said in passing that the question is not one of practical importance, because section 103 of the Building Code of the city of New York does, now contain and at the time of the fire did contain a provision similar to said provision of the general law. Had the complaint in this case been prepared Avitli proper care the said provision of the Building Code would have been pleaded and the questions raised by this demurrer would have been avoided. However, if I am right in what I have said, it follows that, irrespective of the Building Code of the city of New York, the duty rested upon the defendant to provide some kind of fire. escape for his building. The complaint avers that he wholly omitted to discharge that duty with the consequent injury to the plaintiff. I think a ■ cause of action was stated.

The judgment should be affirmed. ■

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.  