
    People v. Wood.
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    Boards of Health—Abatement of Nuisance—Notice to Owner of Premises.
    The making of an order by a board of health to a person as the owner of certain real property, requiring him to abate a nuisance thereon, involves a judicial determination that he is the owner, and, as such, permits the existence of the nuisance; and the order is therefore void when made without previous notice to him, even though the statute authorizing siich order (Laws N. Y. 1885, c. 870, § 3) does not require notice of the making thereof; and a failure to comply therewith cannot be made the basis of a criminal prosecution under the provision making it a misdemeanor to willfully violate or refuse to obey such an order, (Laws N. Y. 1885, c. 270, §4.) .
    Appeal from court of sessions, Fulton county.
    Complaint against James M. Wood for failing to abate a nuisance, as required by an order of a board of health. Defendant appeals from a judgment affirming a conviction and judgment thereon rendered in the recorder’s court of the city of Gloversville.
    Reversed.
    Argued before Learned, P J., and Landon and Mayham, JJ.
    
      N. H. Aníbal, for appellant, William Green, Dist. Atty., (Edgar A. Spencer, of counsel,) for the People.
   Mayham, J.

The board of health of Gloversville 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. Houghtaling, 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 $25.00; and for a willful 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, Pres.”

The case discloses that this order was served on the defendant on the 19th day of July, 1880, 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 défendant willfully 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 Gloversville, who issued this 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 aifort 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 existence of a nuisance and order it abated, and that a refusal or neglect of the person to obey that order, after its service upon him, is such a willful refusal as to make him guilty of a misdemeanor, within the provisions of section 4 of chapter 270 of the Laws of 1885. Subdivision 4 of section 3 of this act authorizes the board of health to receive and examine into the nature of complaint 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 provides that “every person who shall willfully 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, or 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 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 ''"nlthy and it has been held that such determination is of quasi judicial character. People v. Board, (Sup.) 12 N. Y. Supp. 561. 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 v. Board, supra, 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 section 3 ‘ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisance,’ 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, refute the charge made against him. Ho proper inquiry leading to a final order affecting private fights 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 W'hich 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 willfully 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 section 3 of this act, the said board of health, or its servants or employes, may lawfully enter upon any premises to which said order or regulation relates, and suppress or remove the nuisance or other matter, in the judgment of the said board detrimental to the public health, mentioned in said order or regulation, and any other nuisance or matter of the description aforesaid found then 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. Pr. 7; Rogers v. Barker, 31 Barb. 447. But from these cases it seems that this power should be exercised only in extreme eases, 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 conviction 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. All concur.  