
    The City of New York, Appellant, v. Morton H. C. Foster, Respondent.
    (Supreme Court, Appellate Term,
    May, 1911.)
    Buildings — Material of construction — Dumbwaiter shafts — Construction of building code.
    Section 97 of the building code of the city of New York, which provides for fireproofing dumbwaiter shafts, except such as do not extend more than three stories above the cellar or basement in dwelling houses, is constitutional; and, by virtue of section 1 of said code, applies to dumbwaiter shafts in buildings erected prior to the enactment of said section 97.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint.
    Archibald B. Watson (John P. O’Brien and Samuel J. Parmenter, of counsel), for appellant.
    Alexander, Cohn, Sondheim & Ettinger (Ira J. Ettinger, of counsel), for respondent.
   Seabury, J.

This action was brought for the recovery of a penalty imposed by section 150 of the building code of the city of ¡New York for a violation of the provisions-of section 97 of said code. Section 97 provides that “ dumbwaiter shafts ” in tenement houses shall be fireproof. The language of the- section is that “ all dumbwaiter shafts,-except such as do not extend more than three stories above the cellar or basement in dwelling houses, shall be enclosed in suitable walls of brick, or with burnt clay blocks, set in iron frames of proper strength or fireproof blocks strengthened with metal dowels, or such other fireproof material and form of construction as may be approved by the Commissioner of Buildings having jurisdiction.”

The opinion of the learned court below so fully and satisfactorily demonstrates the constitutionality and reasonableness of the provision of the building code which is set forth above, and that such provision has the force and effect of a statute, that it is unnecessary for us to discuss these features of the case.

The only question which we now deem open to argument is • as to the interpretation which is to be placed upon this provision.

The learned court below was of the opinion that the section was not applicable "to buildings which were erected 'before its enactment. It is conceded that the building of defendant was erected before the section quoted was enacted. We do not agree with the opinion of the court below that this' provision of the building code applies to “all dumbwaiter shafts ” in new buildings only. The language of section 1 of the building code is such as to indicate that the following sections were intended to be applicable to “ buildings or structures erected or to be erected,” unless a different intention was expressed in those sections. The language of the section in question is comprehensive and embraces “ all dumbwaiter shafts” in the city except those expressly excepted by the language of that section.

We think that this provision should be given its natural and ordinary meaning and that, as the provision is clear and unambiguous, it is unnecessary 'to resort to artificial rules of construction to aid us in arriving at its true meaning. If the lawmaking body had intended that this provision, should, not apply to all dumbwaiter shafts ” except those specifically excepted, we think it is reasonable to presume that such intention would have been expressed and that the words hereafter, constructed ” or other appropriate words would have been selected for this purpose. The language of' the Court of Appeals in Racine v. Morris, 201 N. Y. 240, in reference to section 96 of the building code is applicable to the section under consideration. In that case the court said: “ Section 95-of the Building Code imposed likewise new duties upon the owners and occupants of buildings. * * * The section is in its nature and effect salutary and remedial. It was adopted in order that it might effect added and desired security and safety to lives and limbs. It is incumbent upon us to give it a construction as broad and liberal as a reasonable and fair understanding of its language will permit.”

It is urged that to hold that this section applies to dumbwaiter shafts in buildings erected prior to the enactment of section 97 will impose a great hardship upon the owners of such property. The answer to this contention is that the necessity, wisdom and expediency of the law is for the Legislature and not for the judicial branch of the government to determine. The lawmaking body which had authority to legislate upon the subject has determined- that such a regulation was necessary for the protection of lives and the safety of the large portion of the community who live in houses of the class specified in this section.

If, as we assume, this provision is necessary to protect the lives and safety of those who dwell in houses of this class, we can see no good reason for limiting its. application to dumbwaiter shafts in new ■ buildings. The same necessity would exist, and probably to a greater degree, for making the provision applicable to dumbwaiter shafts in old buildings. When we bear in mind the purpose of this enactment, we think it would be unreasonable to assume that the lawmaking body intended to afford the protection resulting from fireproofing dumbwaiter shafts only to those who live in new buildings erected after the enactment of this ordinance.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Guy and Bijur, JJ., concur.

Judgment reversed and new trial ordered.  