
    Health Department of the City of New York, Respondent, v. Frederick Dassori, Appellant, Impleaded with Others.
    
      Sew York city—a building, constituting a nuisance, cannot be destroyed unless its destruction is the only method by which the nuisance can be abated — the fact that it deprives an adjoining building of proper ventilation does not justify its destruction.
    
    The purpose of section 659 of the Consolidation Act (Laws of 1883, chap. 410, as amended by chap. 567, Laws of 1895) was to provide a summary method by which any nuisance in a building in the city of NeW York, making the building dangerous to the health of its occupants or that of any other persons1 might be abated, also to provide a way in which the existence of the nuisance might be adjudged and the necessity of the destruction of the property where the nuisance existed might be decreed, and finally to provide a method of fixing the compensation to which the owner of the building would be entitled if its destruction was found necessary.
    Proof that rear tenement houses, each five stories high, lighted only from a court on the west or front from five to eleven feet wide, and a space or opening of eleven inches wide at the southeast corner of the court, and a space on the east side of eight inches filled with all sorts of- filth, occupied by one hundred and fifteen persons, showing a death rate almost twice the normal one, damp, filthy, infested by vermin and filled with foul smells and by their construction interfering with the light which would otherwise have been enjoyed by tenement houses on the front of the lots, justifies a finding that the rear tenement houses are unfit for habitation, but does not necessarily establish the fact that they are not capable of being made fit for other uses to which the owner might lawfully put them; nor does it show that the nuisance could not be abated in any other way than by their destruction.
    
      The owner of a tenement house cannot he compelled to submit to its destruction, if it is on his own land, merely because some building adjacent to it is, by reason of its existence, deprived of proper ventilation.
    Appeal by the defendant, Frederick Dassori, 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 24th day of May, 1897, confirming the report of commissioners of appraisal, with notice of an intention to bring up for review upon such appeal a judgment entered in said clerk’s office on the 9th day of February, 1897, upon the report of a referee.
    ' David Kea/ne, for the appellant.
    
      Roger Foster, for the respondent.
   Rumsey, J.:

This proceeding was begun under the authority of section 659 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 567 of the Laws of 1895, for the purpose of condemning certain buildings situated in the rear of Nos. 308, 310, 312 and 314 Mott street in the city of New York, by a petition praying for the condemnation of the buildings, filed by the department of health. In that petition it was alleged substantially that the buildings sought to be condemned were in such condition as to be dangerous to public health, and that they were not reasonably capable of being made fit for human habitation and occupancy, and that the evils caused by said buildings could not be remedied in any other way than by their destruction. To this petition an answer was filed in which the appellant denied the existence of a nuisance upon said premises, or that the premises were not fit for human habitation, and practically put in issue the existence of all the" facts which, by the statute in question, are necessary to authorize the condemnation of the buildings. Upon this issue a reference was ordered to hear and determine, and the referee found that the condition of affairs "alleged in the petition existed, and that the plaintiff was entitled to judgment for the appointment of commissioners. Judgment to that effect was accordingly entered, and thereupon three commissioners were appointed to appraise the value of the property, and a hearing was had before the'm in due form. As the result of that hearing the compensation was fixed at the value of the materials of the building, and a final order confirming the report was entered, by virtue of which the amount awarded to the appellant was the sum found by the commissioners to be the value of the materials of the. buildings, which was $110, and it was ordered that, upon the payment of that sum to the appellant, the health department should be entitled to enter upon the possession of the property condemned and to hold it for public use, and to destroy the rear tenement house described in the petition. From that final order this appeal is taken, and in the notice of appeal it is stated that the defendant will bring up for review the judgment entered upon the report of the referee, and all proceedings antecedent thereto.

Before considering the reasons given by the appellant why this order should be reversed, it is advisable to examine the statute to ascertain just wliat the object of the Legislature was, in passing.it, and the means they have adopted to attain that object. The statute is in that part --of the Consolidation Act which relates to the health department,''and contains the provisions with regard to tenement houses. As is well known, the condition of many buildings used for that purpose has been for years a menace to the public health, and grave questions have arisen as to the best manner in which the evils arising from their condition comd be remedied and the dangers to the public health averted. The condition of these houses arose not alone from the habits of the inmates, but principally and largely from the construction, plans and location of the buildings themselves. It was well understood that these evils were such as to. seriously threaten the health of the community and to render likely severe epidemics, with all the consequences which follow such a condition of affairs in a crowded community, and to meet that condition and to avert these perils careful inspection was required, and it might often be necessary to take summary measures to abate nuisances which, if permitted to exist, would endanger the health of the people of the city. To meet and provide for this condition of affairs was the object of the statute.

■ It provides, in the first place, that whenever it shall be certified to the board of health- that any building is infected with contagious diseases, or, by reason of want of repair, has become dangerous to life, or is unfit for human habitation, because of defects in drainage, plumbing, ventilation or the construction of the same, or because of the existence of a nuisance on the premises, and which is likely to cause sickness among its occupants, the board of health might, in a manner prescribed in the statute, require all persons to vacate the buildings. The statute provided for notice of the order to be given to the occupants of the building and to its owner or his agent, and it contained a further provision that, whenever the defects mentioned in the' order shall be remedied or the danger shall cease to exist, the board of health might revoke the order. The statute further pi'ovided that whenever, in the opinion of the board of health of the health department of the city of New York, any building, or part thereof, in the city of New York, an order to vacate which has been made by said board, is, by reason of age, defects in drainage, plumbing, infection with contagious disease or ventilation, or because of the existence of a nuisance on the premises which is likely to cause sickness, * "x" * or because it stops ventilation in other buildings, or otherwise makes, or conduces to make, other buildings adjacent to the same unfit for human habitation or dangerous or injurious to health, or because' it ■ prevents proper measures from being carried into effect for remedying any nuisance injurious to health or other sanitary evils in respect of such other buildings so unfit for human . habitation that the evils in, or caused by, said building cannot be remedied by repairs or in any other way except by destruction of said building or a portion of the same,” the board was authorized to condemn the building and order it to be removed. It provided, however, that, upon such condemnation being made, the owner might demand a survey of the building in the manner provided for in the case of unsafe buildings. The proceedings for condemnation were to be taken by the board of health, and were to be proceeded with in the manner prescribed by the general law. The statute provided that, upon the institution of the proceedings, the owner, or any person interested in the building,- might dispute the necessity of the • destruction of the building or any part thereof, and, in that case, the court was not authorized to appoint commissioners unless proof was made of the necessity of such destruction.

The foregoing is all that need be recited of the statute at present. It is quite clear that the object of this statute was to provide a summary way in which any nuisance in a building, as the result of _ _ ■ : : ' which the building was dangerous to the health of its occupants or any other persons, might be summarily abated, and- to provide further a way in which the existence of the nuisance should .be adjudged, and the necessity' of the destruction of the property upon which the nuisance existed might be decreed. When that .had been-done, the object of the statute was further to provide for the fixing of the compensation to which the owner of the building would be entitled, if its destruction was found to be necessary.

The appellant here insists that the judgment appointing the commissioners to appraise the damages is erroneous, because there was no sufficient evidence that his buildings were unfit for human habitation, or that they were not capable of being made. fit. No evidence upon this subject was offered by the defendant, and the case stands solely upon the proof made by the plaintiff of the situation and condition of these buildings, and such proof is entirely undisputed. The evidence showed that' the building or buildings, in question were situated in the rear of four other buildings owned by the appellant, which fronted upon Mott street,, and were. also occupied as tenement houses. These rear houses were ninety-one feet long from north to south, and a little over twenty feet wide. The length of the buildings was parallel -with Mott street and they extended across the premises of the defendant, occupying in their, north and south course the whole width of those- premises. They Were five stories high. From the front of these buildings to the rear of the buildings occupying the front of the lot was a court extending the whole width of the lot, and being five feet in width on the northern extremity, and' .eleven feet at its Widest part. This court was entirely surrounded by buildings, the lowest of which .were ■ three stories high. The , front buildings facing on Mott street, the rear'of .which formed the front wall of this court, were four stories high. , On each end of this narrow court were buildings over forty feet high,' and the rear of the coiirt was formed by the wall of the buildings in question, which were five stories high. At the southeast corner of this court there was a space, of eleven inches between, the rear wall of the building on the next lot-and- the south wall of: the building in question, but except for that space of eleven inches, there was no way in which fresh air could reach that court except’ from the top. The north and south walls of these buildings weredead walls without any windows or ventilation whatever, except a small window on the north side of each story. The east wall stood next to a dead wall and about eight inches from it, so that the space between the east wall of the tenements in question and a blank wall of the buildings several stories in height, just east of it, was ninety-one feet long and eight inches wide. As might be expected, this space was "full of all sorts of tilth, and its condition was such as to be unmentionable. The apartments in these buildings consisted of three rooms a front room lighted and ventilated by two windows, each five feet by three, opening into the front courtyard, and two bedrooms in the rear, each eight feet high and six feet ten inches square, and lighted by a single window two feet square, opening on to the court eight inches wide, and having no other ventilation, except that the bedrooms on the northeast corner on each floor had a window opening on the north into a yard. But except for that the bedrooms had no ventilation whatever, save such as they might get from the living room or from the windows,opening on to this ill-smelling and narrow court, eight inches wide. The cellars of these buildings were occupied by school sinks, for the use of all the tenants of both front and rear buildings. These cellars opened into the courtyard and had no other means of ventilation. They were damp, the floor being constantly wetted by the water from the hydrants in front of the buildings and by the sinks. The smell from the cellars going through the whole house was almost unendurable. The stairways in the buildings are narrow and steep, and always were dark and foul; and smoke and coal gas from the defective chimney flues have discolored the walls and ceilings so that it is impossible to make them white. The roofs leak, causing the rooms to be wet. The plaster on the walls and ceilings is cracked in many places, and portions of it have fallen. The places around the sinks in the hall are constantly damp from the waste splash. The houses swarm with vermin throughout. Every room is damp and filled with air which is foul and unfit to breathe. There is no possible way in which the sun could shine into these buildings. The only sunlight which could approach them is that which at certain hours of the day filters down into this court eleven feet wide, along their front, but the rays of the sun which fall into that courtyard for a short time during the day cannot enter any of the rooms of the house, and are insufficient to properly light the lower floors, which are so dark that for a" large portion of the time artificial light has to be used in them, as might be expected. What little sunlight filters into this court is obstructed by the fire escapes along the front of the buildings, which are used for the deposit of various articles by the tenants. This has been the condition of these buildings for a long time. The population in May, 1896, was 115 men, women and children in the rear houses, and 150 in the front houses. Whereas the death certificates show that during the past six years the annual death rate in New York was 24 to 1,000 in these houses, the death rate was 45.87 to 1,000. The death rate in these buildings was considerably higher than the death rate in the ward, and the infant death rate was abnormally high, so that in one year more than one-third of the children under 5 years of age in these buildings died. These deaths were largely caused by the diseases which are nourished by dampness and exposure to foul -air. All these facts not only appeared by the testimony, but .were entirely undisputed or unexplained, and although it was made to appear that such had been the condition of affairs in these buildings for several years, there was no pretense that any effort had ever been made to remedy such of them as were remediable, or that the buildings themselves were capable of being repaired or put into such condition as to be fit for human habitation.The appellant here insists that the judgment appointing the commissioners to appraise the damages is erroneous, because there was no sufficient evidence that his buildings were unfit for human habitation, or that they were not capable of being made. fit. No evidence upon this subject was offered by the defendant, and the case stands solely upon the proof made by the plaintiff of the situation and condition of these buildings, and such proof is entirely undisputed. The evidence showed that' the building or buildings, in question were situated in the rear of four other buildings owned by the appellant, which fronted upon Mott street,, and were. also occupied as tenement houses. These rear houses were ninety-one feet long from north to south, and a little over twenty feet wide. The length of the buildings was parallel -with Mott street and they extended across the premises of the defendant, occupying in their, north and south course the whole width of those- premises. They Were five stories high. From the front of these buildings to the rear of the buildings occupying the front of the lot was a court extending the whole width of the lot, and being five feet in width on the northern extremity, and' .eleven feet at its Widest part. This court was entirely surrounded by buildings, the lowest of which .were ■ three stories high. The , front buildings facing on Mott street, the rear'of .which formed the front wall of this court, were four stories high. , On each end of this narrow court were buildings over forty feet high,' and the rear of the coiirt was formed by the wall of the buildings in question, which were five stories high. At the southeast corner of this court there was a space, of eleven inches between, the rear wall of the building on the next lot-and- the south wall of: the building in question, but except for that space of eleven inches, there was no way in which fresh air could reach that court except’ from the top. The north and south walls of these buildings weredead walls without any windows or ventilation whatever, except a small window on the north side of each story. The east wall stood next to a dead wall and about eight inches from it, so that the space between the east wall of the tenements in question and a blank wall of the buildings several stories in height, just east of it, was ninety-one feet long and eight inches wide. As might be expected, this space was "full of all sorts of tilth, and its condition was such as to be unmentionable. The apartments in these buildings consisted of three rooms a front room lighted and ventilated by two windows, each five feet by three, opening into the front courtyard, and two bedrooms in the rear, each eight feet high and six feet ten inches square, and lighted by a single window two feet square, opening on to the court eight inches wide, and having no other ventilation, except that the bedrooms on the northeast corner on each floor had a window opening on the north into a yard. But except for that the bedrooms had no ventilation whatever, save such as they might get from the living room or from the windows,opening on to this ill-smelling and narrow court, eight inches wide. The cellars of these buildings were occupied by school sinks, for the use of all the tenants of both front and rear buildings. These cellars opened into the courtyard and had no other means of ventilation. They were damp, the floor being constantly wetted by the water from the hydrants in front of the buildings and by the sinks. The smell from the cellars going through the whole house was almost unendurable. The stairways in the buildings are narrow and steep, and always were dark and foul; and smoke and coal gas from the defective chimney flues have discolored the walls and ceilings so that it is impossible to make them white. The roofs leak, causing the rooms to be wet. The plaster on the walls and ceilings is cracked in many places, and portions of it have fallen. The places around the sinks in the hall are constantly damp from the waste splash. The houses swarm with vermin throughout. Every room is damp and filled with air which is foul and unfit to breathe. There is no possible way in which the sun could shine into these buildings. The only sunlight which could approach them is that which at certain hours of the day filters down into this court eleven feet wide, along their front, but the rays of the sun which fall into that courtyard for a short time during the day cannot enter any of the rooms of the house, and are insufficient to properly light the lower floors, which are so dark that for a" large portion of the time artificial light has to be used in them, as might be expected. What little sunlight filters into this court is obstructed by the fire escapes along the front of the buildings, which are used for the deposit of various articles by the tenants. This has been the condition of these buildings for a long time. The population in May, 1896, was 115 men, women and children in the rear houses, and 150 in the front houses. Whereas the death certificates show that during the past six years the annual death rate in New York was 24 to 1,000 in these houses, the death rate was 45.87 to 1,000. The death rate in these buildings was considerably higher than the death rate in the ward, and the infant death rate was abnormally high, so that in one year more than one-third of the children under 5 years of age in these buildings died. These deaths were largely caused by the diseases which are nourished by dampness and exposure to foul -air. All these facts not only appeared by the testimony, but .were entirely undisputed or unexplained, and although it was made to appear that such had been the condition of affairs in these buildings for several years, there was no pretense that any effort had ever been made to remedy such of them as were remediable, or that the buildings themselves were capable of being repaired or put into such condition as to be fit for human habitation.

From this testimony the learned referee was justified in his find: ings that these rear tenement houses were unfit for habitation. But the testimony was far from establishing that they were not capable of being made fit for habitation, or that the nuisance upon them could not be abated in any other way than by their destruction. It was quite clear from the testimony that the unsanitary condition of the. buildings was caused, to a very considerable extent, if not entirely, by the filthy habits of the persons who inhabited them, and grew out of the fact that they were'used for human habitation. It did not appear that, after the buildings had been vacated, they might not easily have been put into a sanitary condition by proper repairs and the removal of those offensive appurtenances which were more particularly complained of as the cause of their unhealthy condition.

Even if it be said, however, from this testimony, that the referee would have been justified in finding that the buildings could not have been made fit for human habitation, still, the necessity for their destruction was not made to appear, A thing is a nuisance when, because of its inherent qualities or the use to which it is "put, it. works an injury to people wli„b live in its neighborhood. The right to abate it arises from the necessity of the case, exists only because of that necessity, and is to be exercised only so far as the necessity requires. A thing which is a nuisance because of the use to which it is put cannot be destroyed by way of abating the nuisance unless such destruction is necessary. If the nuisance can be abated by discontinuing the use it must be abated in that way. (Wood Nuis. § 33; Ely v. Supervisors of Niagara County, 36 N. Y. 297.) The case of Meeker v. Van Rensselaer (15 Wend. 397), which has sometimes been relied upon as establishing the proposition that a building which was in a filthy condition and calculated to breed disease, and was thereby a public nuisance, might be torn down by way of abating the nuisance, was decided upon the facts of that case. It was there made to appear, and was not disputed, that the only way of abating the nuisance was by ■ the destruction of the buildings, and for that reason alone it was held by the Supreme Court that the destruction was justifiable. But in this case no such fact has been made to appear. Although the buildings may not have been capable of being fitted for habitation, still, if they were so put in repair that the e.vil smells should be removed and the sources of contagion taken away— as it is plain from the evidence might be done—the buildings would cease to be a nuisance, and the fact that they might not thereby be made fit for human habitation would not authorize their destruction. If they ceased to he in such a condition as to breed pestilence and spréad disease, and were rendered innoxious, the owner of them had a right to have them remain upon the premises,-even though he might uot be, permitted to use them as a tenement house. There are many other uses to which-he might lawfully put them, and the undoubted power of the public to refuse him permission to rent them to be used for human habitation did not ' necessarily involve the right to destroy them if they were not for that purpose.

One of the allegations-in the petition was that the buildings prevented proper measures from being carried into effect for remedying nuisances dangerous to health and other sanitary evils in respect of other buildings to which they were adjacent. As has been said, it was made to appear that these buildings were erected within a very short distance of other buildings which were also uséd as tenement houses, and it is quite likely that the proximity of the two buildings deprived each of them of the ventilation necessary to make them fit for the uses to which the owners intended to put them. But if these particular buildings were themselves in a proper condition, or were put in a proper condition, .the fact that, located as they were, they stopped ventilation of other buildings so that those other buildings were not fit to be used as tenement houses, was no warrant for the destruction of these buildings. It might furnish a good reason why the other buildings, not being supplied with sufficient air so that they could be occupied by a great numbér of people, might be vacated ; but was not a reason for the destruction of these buildings, so that the other buildings might become fitted for use as tenement houses and thereby more valuable. In this country the right of one owner of property to have light and air for his buildings at the expense of land of another owner is not recognized, except it comes to exist by express contract. (Myers v. Gemmel, 10 Barb. 537.) All that the owner of any building can be called upon to do. with regard to that building, if he desires to use it as a tenement house, is to keep it in such a condition as the statute requires. If he does that, he has complied with the law and his building is not a nuisance. He cannot be compelled to submit to the destruction of his building if it is on his own land, because some other building adjacent to it is thereby deprived of proper ventilation.

The case then, so far as the plaintiff is concerned, must stand upon the condition of these "buildings themselves, and upon- the fact that they were not capable of bei'ng put in such a condition that they would not be of themselves dangerous to public health. Unless that was made to appear, the right to. destroy them did not exist. In such cases the right to condemn grows out of .the right to destroy the building because it is a public nuisance and. can be abated in no other way ; and unless that is made to appear, there can be no final order for condemnation.

For the reason, therefore, that there was a complete failure of evidence to show that it was not practicable so to repair these buildings as that they might be put in a wholesome condition and not remain a public nuisance, without their destruction, the judgment which is brought up on this appeal was erroneous and must be reversed, and the final order must fall'with the judgment.

Patterson, Williams and O’Brien, JJ., concurred ; Parker, J., not voting.

Final order and judgment reversed and a new trial ordered of the issues framed upon the petition and answer, with costs to appellant to abide event.  