
    WILLY v. MULLEDY.
    
      City Court of Brooklyn;
    
    
      General Term, December, 1878.
    Fibe-Bscapes.—Landlobd and Tenant.—Negligence.
    The owner of a house who neglects to comply with the statute requiring him to provide fire-escapes, &c., is liable to any occupant who sustains injury through the neglect.
    
    The reasoning in the case of McAlpin v. Powell, 1 Abb. New Cas. 427, approved, notwithstanding the reversal of the case in 70 N. T. 126.
    A general order of the fire commissioners of the city of Brooklyn, directing how fire-escapes should be constructed and put up, under L. 1873, c. 863, § 39, is a sufficient direction under the statute to render the owner liable for damages for an injury arising from neglect to comply with the law.
    Appeal by plaintiff from a judgment, and from an order denying a new trial.
    Two actions were brought by Joseph Willy, one as administrator of his wife, Catharine Willy, and the other as administrator of his son Jacob Willy, against Patrick Mulledy, for damages for the death of his said wife and son.
    The plaintiff rented from a real-estate agent the rear rooms, on the top floor of a three-story frame building in the city of Brooklyn, belonging to the defendant. The rooms in front of plaintiff’s were occupied by another tenant. At the front of the building there was a scuttle opening from the roof into a closet, situated on the same floor as plaintiff’s rooms, but at the other end of the hall or landing. This closet was used by the tenant who occupied the front rooms, as a common store-room, for keeping wood, coal, cooking utensils, &c.
    On November 5, 1877, at about 11:30 o’clock in the forenoon, a fire, which originated in the lower portion of the premises, occupied as a baker shop, spread very rapidly up the stair-cases in the interior of the house, and filled it with smoke. It was, however, extinguished before destroying the building.
    One of the witnesses testified .that during the fire he saw a woman with a child in her arms open the windows on the third story in the rear; that she seemed distracted, and not to know what she was doing, going from one window to another ; he hallooed to her to go down stairs, but she replied: “I can’t get down stairs.” The smoke was then coming out of the windows in volumes, and she immediately disappeared.
    After the fire had been subdued, a fireman succeeded in ascending to the top floor, although the two top steps of the stairs, being burnt almost through, broke with him, and there found the dead bodies of plaintiff’s wife and child. The fire had not entered the room where the bodies were found, but the only outlet therefrom was on fire, and the door was burning, and the banisters along the top floor were burned away, and the outside of the frame of the scuttle-closet door was burned. The windows of the room in which the bodies were found were open, and the door leading from the hall into the large room, and the doors leading from the large room into the bed-room were found open.
    At the time of the fire the building was occupied by five families, but there was no ladder or stair-case from the scuttle-closet to the roof, nor was there a fire-escape erected upon either the front or rear of the building.
    At the close of plaintiff’s case, the court, on motion of defendant’s counsel, directed a verdict for the defendant.
    
      Adolph Simis, Jr., for plaintiff, appellant.
    If the defendant owed a duty or obligation to the persons injured, he is liable in damages, if the injuries are referable to that breach of duty or obligation, in the absence of contributory negligence (McAlpin v. Powell, 70 N. Y. 126): and such a duty or obligation may arise by express statute (Cow. Dig. Action upon Statute; E. Wharton on Neg. § 443 ; Braitwaite v. Skinner, 5 M. & W. 327 ; Clarke v. Brown, 18 Wend. 220 ; ubi jus ibi remedium, Broom's Maxims ; Smith v. Lockwood, 13 Barb. 209 ; Heeney v. Sprague, 11 R. I. 457; Ewer v. Jones, 2 Salk. 415 ; Sedgwick on Statutes, 92 ; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Duncan v. Thwaites, 3 Barn. & Cres. 556 ; Myers v. Malcolm, 6 Hill, 295 ; Rose v. Myles, 4 M. & S. 101; Henly v. The Mayor, &c., of Lyme Regis, 5 Bing. 91; 3 Barn. & Adolph, 77; Mills v. Hall, 9 Wend. 315; Shearman & R. on Neg. § 4; Thomas v. Winchester, 6 N. Y. 397; Creswell v. Hoghton, 6 Term R. 355 ; Fish v. Fisher, 2 Johns. Cas. 89). The imposition of a penalty, not for the benefit of the one damnified, is a punishment for the public offense only, and is no bar to an action by one sustaining special injuries (5 Ellis & Black. 848 ; Handley v. Moffat, 21 W. R. 231; Couch v. Steel, 3 Ellis & Black. 414 ; Atkinson v. Newcastle, &c. Water Works Co., L. R. 6 Exchq. 404; Dudley v. Mayhew, 3 Coms. 15 ; Sedgwick on Stats. 95; Aldrich v. Howard, 7 R. I. 199). The owner was under a legal obligation to the occupants and to the public to comply with L. 1873, c. 863, p. 1354 ; where safety of human life is in question a very high degree of care is required (Castle v. Duryea, 32 Barb. 480 ; 2 Marshall, 277). By the common law, the liability arises out of the duty which the law imposes upon one to avoid acts in their nature dangerous to the lives of others (Burke v. De Castro, 5 W. Digest, 239 ; Cesar v. Karutz, 60 N. Y. 229 ; Barney v. Burnstenbinder, 64 Barb. 212; Pickard v. Collins, 23 Barb. 445; Robbins v. Mount, 4 Rob. 553; Fire Dep’t. v. Williamson, 16 Abb. Pr. 402). The failure of a person to perform a duty imposed on him by statute, is evidence of legal, negligence (Clemence v. City of Auburn, 66 N. Y. 334; Gorton v. Erie R. R. Co., 45 Id. 662; O’Mara v. Hudson R. R. Co., 38 Id. 445 ; McGrath v. N. Y. Cent., &c. R. R. Co., 63 Id. 528 ; Johnson v. Hudson R. R. Co., 20 Id. 65). The common law rule of caveat emptor and repairs is no defense (Johnson v. Dixon, 1 Daly, 178 ; Suydam v. Jackson, 54 N. Y. 457; Eagle v. Swayze, 2 Daly, 140 ; Robbins v. Mount, 4 Rob. 553 ; Kimmel v. Burlend, 2 Daly, 155 ; Eakin v. Brown, 1 E. D. Smith, 43 ; Warren v. Kauffman, 2 Phil. 259; Shearman and R. on Neg. §§ 354, 514; Marshall v. Cohen, 44 Ga. 489 ; Taylor's Landlord and Tenant, § 321; Totten v. Phipps, 52 N. Y. 354; Swords v. Edgar, 59 Id. 28). The premises at the time of the letting were a public nuisance, and in the absence of contributory negligence the wrong-doer is responsible, irrespective of the question of negligence (Congreve v. Smith, 18 N. Y. 79; Irvine v. Wood, 51 N. Y. 224; Shearman and R. on Neg. § 344 and cases cited; Wood on Nuisances, §§ 618, 829). Notice to the defendant of the condition of the building is not necessary to fix his liability (McCarthy v. City of Syracuse, 46 N. Y. 194; Bostwick v. Barlow, 6 W. Digest, 563; Hover v. Barkhoof, 44 N. Y. 113 ; Wood on Nuisances, §§ 27, 28; 3 Waite's Actions and Defenses, 449, and cases cited). The defendant had notice of his statutory duty by the following laws : L. 1866, c. 858, § 7; L. 1867, c. 908, § 3; L. 1868, c. 632, § 17; L. 1869, c. 591, §§ 2 and 8 ; L. 1873, c. 863, title 13, § 36. Negligence is a question of fact, and when the inference to be drawn from the proof is not certain, it cannot be decided as a question of law by directing a verdict or non-suit, but must be submitted to the jury (Thurber v. Harlem B. & F. R. R. Co., 60 N. Y. 326 ; Shearman and R. on Neg. § 13; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458). Natural instinct of self-preservation would stand in the place of positive evidence that the deceased employed such care as under the circumstances was necessary to effect her escape (Coulter v. American Merchants’ Union Ex. Co., 56 N. Y. 585, and cases cited supra).
    
    
      Thomas E. Pearsall {Morris & Pearsall, attorneys), for defendant, respondent.
    The facts being undisputed, it was proper for the court to direct a verdict. (Appleby v. Astor Fire Ins. Co., 54 N. Y. 253). As the evidence would have warranted the jury to find a verdict for the defendant, the finding of the facts by the court instead of by the jury, is not a ground of exception (McCall v. Sun Mutual Ins. Co., 66 N. Y. 517 ; Marine Bank v. Clements, 31 Id. 43; Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. Dec. 139 ; Leggett v. Hyde, 58 N. Y. 272; Winchell v. Hicks, 18 N. Y. 558; Barnes v. Perine, 2 Kern. 18; Sheldon v. Atlantic Ins. Co., 26 N. Y. 460). The court properly held that the evidence did not disclose any act or default on the part of the defendant amounting to negligence (L. 1847, c. 450; L. 1869, c. 591, § 8 ; L. 1873, p. 1354, c. 863, § 36). A tenant takes premises at Ms own risk in the condition they are at the time of hiring, unless there is some false representation or fraudulent concealment (Jaffe v. Hartea, 56 N. Y. 398; O’Brien v. Capwell, 59 Barb. 497 ; Cleves v. Willoughby, 7 Hill, 86 ; McGlashan v. Tallmadge, 37 Barb. 313). It is essential to a recovery for an omission to perform some legal duty, to establish that the defendant owed at that time some specific clear legal duty to the plaintiff or the party injured (Nicholson v. Erie R. R., 41 N. Y. 529).
    
      
       A breach of a statutory duty does not necessarily give a right of action to a person suffering injury in consequence of the act which constitutes such breach. If an act in itself is wrongful or negligent, the fact that it was done in violation of the statute will in many cases be relevant either in establishing its wrongful character, or upon the question of damages. But in an action founded on contract simply, the contract being such that in itself the facts constitute no cause of action apart from the violation of the statute, the fact that the contract was made in the knowing violation of a statute, on the part of the defendant, while the plaintiff was ignorant of the violation, doe's not sustain the action. Thus, where the owner of sick pigs sent them to market, in violation of the statute forbidding the exposure of such animals for sale, and sold them there, expressly without warranty, ‘1 and with all faults \"—3eld, that the statutory duty did not raise an implied warranty in spite of the express disavowal of warranty (Ward v. Hobbs, 40 Law Times N. S. 73).
    
   Reynolds, J.

The defendant’s tenement house, at the time of the fire by which plaintiff’s intestate lost her life, was occupied by five families, one on the first floor, and two on each of the two stories above.

It therefore came within the provisions of the act of 1873 (see Laws of 1873, c. 863, p. 1354, § 36). By that act it was made the duty of the owner to provide the building with such fire-escapes as should be directed and approved by the fire commissioners. By section 36 of the same chapter, it was also made his duty to provide a scuttle of proper size in the roof, and to have a ladder or stairway leading to the same ; such scuttle and stairway, or ladder, to be kept in readiness for use at all times. No fire-escape had ever been provided, and there had been no stairway or ladder leading to the scuttle for several years previous to the fire.

This statute was intended, among other things, for the protection and safety of occupants in' case of fire, and under it the landlord owes to such occupants the duty of providing the means of escape thus required by law.

If they sustain injury through his omission to discharge such duty, it seems to us clear, upon principle, that he should be held liable.

We concur in the reasoning of Judge McCue, in the case of McAlpin v. Powell, so far as the same is. applicable to this case. The court of appeáls decided that the defendant in that case was not liable, for the reason that the deceased was upon the fire-escape (which was defective) when there was no fire, and therefore, upon an improper occasion. But the court says. “ It (the fire-escape) is an attachment to a certain class of tenant houses which are enumerated in the statute, which is erected especially for the protection of the occupants, and a duty is imposed upon the landlord and owner having in view that object” (70 N. Y. 126).

The plaintiff’s intestate, in the case before us, was smothered by the smoke from a fire in the lower part of the house where she lived, and we think there was evidence upon which the jury would have been justified in finding that she failed to escape, because the defendant had not provided the means required by the statute. This question should have been submitted to them.

The statute requires such fire-escapes to be provided “as should be directed and approved by the commissioners.” It appears that the board had, by a general order, directed how all fire-escapes on tenement houses and other buildings, as required by the law in question, should be constructed and put up. We think this was a sufficient direction under the statute, but if not, it would probably have been the duty of the defendant to seek the direction and approval of the commissioners, in the discharge of his obligation to his tenants.

For these reasons, a new trial should be granted, costs of appeal to the appellant to abide the event.

Neilson, Oh. J., concurred.  