
    Clarence D. Stowell, Respondent, v. R. M. Owen & Company and Raymond M. Owen, Appellants.
    First Department,
    January 22, 1914.
    Negligence — Labor Law, section 94, construed — provision relating to sanitary conditions of “tenant factory ” — said section not applicable to personal injuries caused by mechanical appliances.
    Section 94 of the Labor Law, providing in substance that the owner of a “tenant factory” shall keep the building well drained, the plumbing in good condition, the basement and other parts of the building in a sanitary and “safe” condition, has no relation to the appliances in the building from a mechanical point of view. It relates solely to matters of sanitation.
    Hence, a person who was injured by a freight elevator in such building cannot recover damages from the owner under said section.
    Appeal by the defendants, R. M. Owen & Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of February, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.
    
      
      Bertrand L. Pettigrew, for the appellants.
    
      Howard C. Taylor, for the respondent.
   Scott, J.:

The defendants are the lessees of the whole of a building in the city of New York, being what is described as a tenant factory. ” They occupy a portion of the building for the purposes of their own business, and other portions they sublet. Among others they lease to a concern known as United Manufacturers a part of the basement, as well as a part of an upper floor. Another part of the basement is leased to the firm of C. A. Metzger Sc Co. Connecting the several floors, as well as the basement, is a freight elevator for the use of the tenants in the building. The openings into the elevator shaft are protected with heavy duplex doors, divided horizontally in the middle and counterbalanced so that when the upper half is pushed upwards, the lower half descends, and vice versa. The two parts of the door are connected by a chain which passes over a pulley or wheel. This chain is fastened through a piece of metal called a lug, in which there is a hole to hold the chain.

The plaintiff was an employee of the United Manufacturers, and on the day of the accident having occasion to descend in the elevator to the basement he did so and when he arrived at the bottom he undertook to open the doors by pushing up the upper half. The doors did not completely open so he put his foot on the lower half to push it down. As he did so the upper half fell breaking his leg. Just what caused the door to fall is not made at all clear. It was shown that it was possible for the chain connecting the two doors to slip out of the lug, and that this had happened once, but only on one side, whereas in order that the upper half should fall it would be necessary that the chain should slip on both sides, for the doors were connected by two chains one on each side.

In the view which we take of the case, however, it will not be necessary to consider how the accident happened or who, if any one, is chargeable with negligence with respect thereto further than to say that upon the evidence we should find difficulty in sustaining a judgment resting solely upon an imputation of negligence to defendants.

. The complaint was so framed as to permit a recovery either upon the ground of negligence or under a section of the Labor Law to which we shall presently refer. At the close of all the evidence the court required the plaintiff to elect whether he would rely upon negligence, or upon defendants’ statutory liability and he elected to stand upon the latter. The question we have to determine, therefore, is whether or not the judgment can be sustained under the statute referred to.

The provision relied upon forms a part of section 94 of the Labor Law, and so far as applicable to the present case reads as follows: “ The owner of every tenant-factory shall keep the entire building well drained and the plumbing thereof in a clean and sanitary condition; and shall keep the cellar, basement, yards, areaways, vacant rooms and spaces, and all parts and places used in common in a clean, sanitary and safe condition, and shall keep such parts thereof as may reasonably be required by the Commissioner of Labor properly lighted at all hours or times when said building is in use for factory purposes.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 94.)

The whole section, from which the above is an excerpt, deals with the responsibility of the owner of a tenant factory to keep the premises in a clean and sanitary condition, and such is the very apparent purpose of that portion of the section above quoted. When it requires an owner to keep certain por tions of the premises used in common in a “ safe ” condition the meaning of the word must be ascertained by reference to the general purpose of the section. It cannot properly, in our opinion, be extended so as to impose upon an owner an absolute non-delegable duty to see to it that a contrivance appurtenant to or connected with the elevator is ‘ safe ” in a mechani • cal sense. The elevator door was certainly not an integral part of the cellar or basement, as these words are generally understood, nor was it a “part or place” in the sense in which those words are used in the statute. We are, therefore, of the opinion that, even if the mechanical contrivance controlling the action of the two halves of the door was “unsafe” as a piece of mechanism, it did not fall within the purview of the statute so as to create an absolute liability on the part of defendants.

As the action was tried and submitted to the jury solely upon the theory that the act did impose upon appellants the absolute duty of keeping- the doors safe, it follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellants to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event. Order to be settled on notice.  