
    Robert Adamson, as Fire Commissioner of the City of New York, Appellant, v. The Green-wood Cemetery, Respondent.
    First Department,
    December 4, 1914.
    Municipal corporation — city of Mew York — provisions of Greater Mew York charter, construed—liability of property owner for expenses of fighting fire caused by his failure to comply with order to install automatic sprinklers — sufficiency of complaint.
    An owner of property in the city of Mew York who fails to install a system of automatic sprinklers in compliance with an order of the fire com missioner made and executed pursuant to the provisions of the city charter, may be held liable for the expenses of fighting a fire which would not have been necessary if the order had been complied with. This, upon the ground of “ wilful or culpable negligence” within the meaning of section 761 of the charter.
    Allegations of the complaint examined, and held, to state a cause of action.
    Appeal by the plaintiff, Robert Adamson, as fire commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of June, 1914, sustaining a demurrer to the complaint, the hearing having been brought on as a contested motion.
    
      
      Albert de Roode, for the appellant.
    
      Edwin D. Bechtel, for the respondent.
   Scott, J.:

The complaint, summarized, alleges that in November, 1912, the then fire commissioner of the city of New York, pursuant to the authority conferred upon him by section 775 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 899 of the Laws of 1911, made and served upon defendant, the owner of the building known as Nos. 212-214 East Ninety-ninth street in the city of New York, an order that said building be equipped with a system of automatic sprinklers; that said defendant failed and omitted to comply with said order and to equip said premises with the system of automatic sprinklers ordered by said fire commissioner, or any other system of automatic sprinklers; that on January 31, 1914, a fire occurred in the basement of said building, and from its point of origin extended to and set fire to other portions of said building and the contents thereof, and spread rapidly throughout the rest of the building and to adjacent buildings, being extinguished by the fire department with great difficulty and after injury to many members of the department; that had a system of automatic sprinklers been installed in said building as ordered by the fire commissioner, and maintained in good working order at the time of the fire, said fire would have been confined to that portion of the building in which it originated, and would not have spread, as it did throughout, and set fire to the rest of the building and the adjoining buildings. It is charged that the failure of the defendant to install a system of automatic sprinklers constituted willful and culpable negligence on its part, and it is alleged, that by reason of this willful and culpable negligence of the defendant the fire department of the city of New York, without fault or negligence on its part, incurred in and about the use of employees, apparatus and materials, the expense of $1,500, which expense would not have been necessary except for the willful and culpable negligence of the defendant. Annexed to and forming part of the complaint by reference is an ordinance of the board of aldermen of the city of New York adopted December 19, 1911, and which went into force and became effective on January 1, 1912.

The demurrer is for general insufficiency. The plaintiff relies upon two sections of the Greater New York charter as warrant for the maintenance of this action. Section 773 provides in part as follows: “Any person, persons, or corporations, for the violation of, or non-compliance with, any of the several provisions of the several sections of this title, when the-penalty is not therein specially provided, shall severally forfeit and pay a fine or penalty in the sum of fifty dollars for each and every offense, or shall forfeit and pay the penalties respectively imposed under any of said sections, and shall also be severally liable for any costs or expenses that may be incurred by any violation of, or noncompliance with, any requirement under said sections, and shall also be severally hable for the payment of the further penalty of the sum of fifty dollars for any violation of, or noncompliance with, any regulation, order or special direction issued by said commissioner,” etc. (Laws of 1897, chap. 378, § 773; Laws of 1901, chap. 466, “Section Three.”)

Section 761, after providing for the recovery of damages for personalinjuries suffered by members of the fire department, provides as follows: “and any or all persons for any fire, resulting from his or their wilful or culpable negligence or criminal intent or design, shall, in addition to the present provision of law for the punishment of persons convicted of arson, be liable in a civil action for the payment of any and all damages to the person or property, the result of such fire, and also for the payment of all costs and expenses of said fire department incurred in and about the use of employes, apparatus, and materials in the extinguishment of any fire resulting from such cause, the amount of such costs and expenses to be fixed by said commissioner, and when collected shall be paid into the relief fund of said department herein created,” etc. (Laws of 1897, chap. 378, § 761; Laws of 1901, chap. 466, § 761.)

Both of the sections above quoted are embraced in the same title of the charter (Chap. XV, title III), and are, therefore, to be read together. Section 773 provides .generally that any person for non-compliance with any of the several provisions of that title shall be liable for any costs and expenses that may he incurred by such non-compliance. Section 775, under which the order for the installation of automatic sprinklers was made, is a part of the same title III. A failure to comply with an order made under section 775 is, therefore, a failure to comply with e provision of title III, and subjects the offender to the consequences specified in section 773 (People v. Kaye, 212 N. Y. 407, 415), which includes liability for costs and expenses incurred by reason of non-compliance. Section 761 is more specific and provides when and under what circumstances a person who has been culpably or willfully negligent, and thus caused a fire, may be called upon to pay damages resulting therefrom, and what damages he may be charged with. It is not claimed, and we do not hold, that the only culpable and willful negligence which would establish a right of action under the section last quoted, is the disobedience of an order of the fire commissioner. All that it is necessary to hold in the present case is that such disobedience as is set forth in the complaint establishes prima facie such culpable and willful negligence. We think that there can be no doubt that it does.

The order of the fire commissioner requiring the installation of automatic sprinklers was presumptively valid and lawful, and non-compliance therewith subjected the owner of the building to the penalties provided for by the charter. (People v. Kaye, supra.) The order being authorized by law and validly made and served has all the authority of a statute or ordinance and its violation, of itself, is sufficient to establish prima facie the defendant’s negligence. (McRickard v. Flint, 114 N. Y. 222; Shields v. Pugh & Co., 122 App. Div. 586.)

In order to justify a recovery under the statute mere negligence is not sufficient. It must be wilful or culpable,” and it is alleged in the complaint that defendant’s negligence was both culpable and willful.

Whether or not the failure to obey the order was willful is a question of fact and the demurrer admits it. Whether it is culpable; that is, criminal or worthy of punishment, is a question of law dependent upon the facts proved, or perhaps more properly speaking a question of mixed law and fact. Upon-the facts stated in the complaint admitted and not explained we find no difficulty in holding that defendant’s failure to obey the order of the fire commissioner was both culpable and negligent.

The defendant argues that the reference in section 761 to the punishment provided by law for the crime of arson indicates that an action for damages under that section will not lie unless the person sought to be charged has been guilty of the crime of arson. It is manifest that this could not have been the intention of the Legislature. What fixes the civil liability is negligence, as well as criminal intent or design. But mere negligence, even if culpable and willful, is not sufficient to establish the crime of arson, of which an indispensable ingredient is a criminal intent. To construe the section, in this regard, as defendant would have us do, would be to emasculate it.

It is further insisted that the defendant cannot he held hable under the statute because it is not alleged that the fire started as a consequence of defendant’s negligence, but merely that it spread for that reason. As we read the section it is not necessary that the fire should be started as a consequence of negligence. The word used in the section is “resulting,” and it is clearly alleged that the spread of the fire, and its communication to adjacent buildings resulted from defendant’s negligence. This we think satisfies the language of the statute and is clearly within its intention. We are, therefore, of opinion that the complaint sufficiently states a cause of action.

. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the demurrer overruled, with ten dollars costs, with leave to defendant to withdraw its demurrer and answer within twenty days upon payment of costs in this court and the court below.

Ingraham, P. J., Clarke, Dowling . and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  