
    The People, Resp’ts, v. James M. Wood, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Board on health—Power to suppress nuisances..
    Laws of 1885, chap. 270, § 3, subd. 4, conferring power on boards of' health to suppress nuisances, contemplates notice to the person complained of in order that he may be heard.
    2. Same—Bight on owner of premises to be heard.
    Where a board of health of a city served a notice upon an alleged owner of premises, determining him to be owner and requiring Mm forthwith to abate a nuisance, the alleged owner having had no notice, and thereafter he was arrested and convicted, Held, that the alleged owner had been deprived of a substantial right, and that said conviction was void.
    Appeal from a judgment of the court of sessions of Fulton county, affirming a conviction of the appellant and judgment thereon rendered in the recorder’s court of the city of Grloversville for failing to abate a nuisance as required by an order of the-board of health of that city.
    
      N. H. Anibal, for app’lt; William Green, for resp’ts.
   Mayham, J.

The board of health of Grloversville made an. order of which the following is a copy:

“ To J. M. Wood : .

“ You will please take notice that upon examination it has been found that a nuisance and source of danger to life and health exists upon the premises described, on Church street, occupied by Mrs. Lent and Mrs. Hotaling and owned by you, which nuisance and source of danger consists of a privy which needs cleaning. And you are required forthwith to remove and suppress-such nuisance and source of danger and cause said premises to be thoroughly cleansed.

“ In default thereof you will be liable to a penalty of $25 and for a wilful violation of the regulations of the board you will be guilty of a misdemeanor and liable to a fine not exceeding $1,000 or imprisonment not exceeding sixty days, or both such fine and imprisonment.

“ Ordered by the Board,

“ A. Simmons, President.”

The case discloses that this order was served on the defendant on the 19th day of July, 1890, but that the defendant had no notice of the meeting of the board of health at which the order was made. On the 22d day of July, 1890, the clerk of the board of health made an information in writing and under oath reciting the above action of the board of health and that the defendant, wilfully violated and disobeyed such order, and prayed for a warrant to apprehend the defendant and presented such information: to the recorder of the city of of Gloversville, who issued his warrant under which the defendant was arrested and brought before the recorder.

On being brought before the recorder the complaint was read to the defendant, who pleaded not guilty, and on motion of the complainant the case was adjourned.

On the adjourned day the People appeared by an attorney and the defendant in person, and the prosecution put in evidence the order of the board of health above set out, and proof of service of the same on the defendant; also proof tending to show that the tenants in possession of the premises on which the alleged nuisance existed rented the same of the defendant; also proof by a member of the board of health that he had examined the premises, and that the alleged nuisance had been removed before the time of issuing of the warrant.

The defendant testified in his own behalf, in substance, that he-was not the owner of the premises on which the alleged nuisance existed, and was not the agent of the owner of the same ; that the premises belonged to Joseph E. Wood, but that after the order of the board of health had been served on him he made an effort to procure some person to clean the premises.

The recorder found the defendant guilty, and made the following order: “ Ordered, that the defendant is guilty, and that he pay a fine of $40, and in default of payment to be imprisoned until paid, not exceeding forty days, in Fulton county jail.” And thereupon the recorder entered judgment of conviction in accordance with that order. From that judgment the defendant appealed to the court of sessions of Fulton county, where the conviction was affirmed, and the defendant appeals to this court.

The principal question urged on this appeal as a ground for the reversal of the judgment of the court of sessions affirming the conviction by the. recorder, is that no notice of the meeting of the board of health to pass upon the existence of this alleged nuisance, or the liability of the defendant for its existence, or for the removal or abatement of the same, was given to the defendant, and that the order of the board of health affected a substantial right of the defendant, and that the board had no jurisdiction to bind him by such an order without notice.

Enough is disclosed in the record to show that the board acted without notice to the defendant, and that the defendant had no notice of the action of the board until after the order hereinbefore recited was made.

But it is insisted on the part of the respondent that the board of health has power to proceed ex parte and without notice to determine the existance of a nuisance and order it abated and that a refusal or neglet of the person to obey that order, after its service upon him, is such a wilful refusal as to make him guilty of a misdemeanor within the provisions of § 4 of chapter 270 of the Laws of 1885. Subdivision 4 of § 8 of this act authorizes the board of health to receive and examine into the nature of complaints made-by any of the inhabitants concerning nuisances, and shall furnish the owners, agents or occupants a written statement of the result or conclusion of such examination, and it shall be its duty to order the suppression and removal of nuisances and conditions detrimental to life or health found to exist within the limits of its jurisdiction. Subdivision 6 of said section provides, among other things, that such board may make “without publication, such orders and regulations, in special or individual cases, not of general application, as they may see fit concerning the suppression or removal of nuisances * * * and serve copies thereof upon any occupant or occupants, owner or owners, of any premises whereon any nuisance or other matter aforesaid shall exist, or to post the same in some conspicuous place on such premises.”

Section 4 of the act of 1885 provided that, “ Every person who shall wilfully violate or refuse to obey any order or regulation made and published by the board of health of any city, village or town in this state; or any order made and served, or posted as aforesaid, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to fine or imprisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars nor such imprisonment six months.”

The order of the board of health in the case under consideration assumed to determine that the defendant was the owner of the premises, and that as such owner he permitted the existence of a nuisance on the same, detrimental to the public health, and upon that assumption commanded him to abate the same or in default thereof to be subject himself to heavy pecuniary forfeiture and a criminal prosecution involving his personal liberty.

It is quite apparent that important property and personal rights were involved in this determination by the board of health, and it has been held that such determination is of quasi judicial character. People ex rel. The N. Y. C. & H. R. R. R. Co. v. The Board of Health of Seneca Falls, 58 Hun, 595 ; 35 St. Rep., 411.

Can such judicial investigation and determination be properly conducted without notice to the person whose property and liberty is put in jeopardy by it?

We think not In People ex rel. R. R. Co. v. Seneca Falls, 58 Hun, 599; 35 St. Rep., 411, the court says: “ Though no special provision is made in the act for notice to the offending party, yet the power given to the board by subdivision 4 of § 3, ‘to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances,’ etc., requires by necessary implication the board to give a reasonable notice to the person against whom the maintenance of the nuisance is alleged that complaint has been made or that such fact exists so that he may be heard in his own behalf and, if possible, to refute the charge made against him. Ho proper inquiry leading, to a final order-affecting private rights can be made without hearing both sides.”

In this case the board assumed to make a final order determining the existence of the nuisance, the ownership of the premises on which it existed, and the liability of the defendant to remove the same.

This order formed the basis of the criminal action against the defendant and the only question remaining for the recorder’s court to determine was whether the order had been wilfully disobeyed by the defendant.-

The recorder’s "court was not an appellate court to review the-action of the board, and it may be doubted whether the order could have been attacked collaterally in the trial court. It would seem to follow that the act of the board of health in making this final order against the defendant ex parte and without notice to-him was without jurisdiction and void.

But it is urged that such a determination will paralyze the efficiency of the board of health and expose the public to the ravages of pestilence without ability on the part of these officers to remove the cause.

But the board of health may, of its own motion, and at the expense of the party maintaining it, abate a public nuisance, being of course accountable to the party injured for an abuse of that power.

Section 4 of the act above referred to provides that “ in any case of non-compliance with any order or regulation which shall have-been served or posted as provided in subdivision 6 of § 3 of this act, the said board or its servants or employes may lawfully enter upon any premises to which such order or regulation relates, and suppress or remove the nuisance, or other matters, in the judgment of said board, detrimental to the public health, mentioned in said order or regulation, and any other nuisance or matter of the description aforesaid found there existing.”

The section further provides that the expense incurred by the board for such removal shall be chargeable upon the occupant or occupants, or the person causing or creating such nuisance, and may be sued for and recovered with the cost of prosecuting the action in the name of the board of health.

Thus the delay and danger to the public health may be obviated by the action of the board itself. Weil v. Schultz, 33 How., 7; Rogers v. Barker, 31 Barb., 447. But from these cases it seems that this power should be exercised only in extreme cases, and then only when a party charged has had an opportunity to be-heard, and fails to show cause why the nuisance should not be abated.

It would seem to follow that the action of the board of health in the case under consideration, without notice to the defendant, was unauthorized and furnished no basis for the criminal proceedings instituted against him, and that his convictioti by the recorder based upon the order made by the board without notice to-the defendant was erroneous, as was the judgment of the court of sessions affirming such conviction, and that the judgment of the court of sessions, and that of the recorder, should be reversed.

Judgment reversed.

Learned, P. J., and Lardon, J., concur.  