
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    Dec. 4, 1914.
    TENEMENT HOUSE DEPARTMENT etc. v. LUCY A. McDEVITT.
    (165 App. Div. 367.)
    (1.) Prostitution—N. Y. Tenement House Law, secs. 109, 124— Liability op owner.
    Sections 109 and 124 of the Tenement House Law, construed with sections 150, 153 and 154 and the amendments thereto by chapter 598 of the Laws of 1913, indicate that the Legislature did not intend to inflict a penalty upon the owner of a tenement house because the same had been used by the tenants in violation of the law for the purpose of prostitution where such violation was without his knowledge or permission.
    (2.) Same—Secs. 153, 154.
    Sections 153 and 154 of the Tenement House Law apply to a proceeding to recover a penalty for a violation of section 109, and require some evidence of the permission of the owner before subjecting him to the penalty prescribed.
    (3.) Same.
    Hence, where in an action brought to recover a penalty under sections 109 and 124 of said act against the owner of a tenement house for a violation of the act, in that certain tenants had used their apartments for the purpose of prostitution, it appears that two of said tenants had been convicted for this offense but evicted by the owner as soon as she received notice thereof, and that she had no other knowledge of any improper use of the apartments, the complaint should be dismissed.
    McLaughlin and Dowling, JJ., dissented, with opinion.
    Appeal by the plaintiff, Tenement House Department of the City of New York, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of June, 1914, affirming a judgment of the Municipal Court of the City of New York dismissing the complaint.
    
      Frank L. Polk, Corporation Counsel \John P. O’Brien and F. E, V, Dunn of counsel], for the appellant.
    
      George B. Holbert [Henry Ackerman ‘with him on the brief], for the respondent.
    
      
       See Noté, Disorderly Houses, Vol. 22-508.
    
   Ingraham, P. J.:

The defendant is the owner of a tenement house located at No. 326 West Forty-third street in the city of New York, and this action was brought to recover a penalty prescribed by sections 109 and 124 of the Tenement House Law (Consol. Laws, chap. 61 [Laws of 1909, chap. 99], as amd. by Laws of 1913, chap. 598). The pleadings were oral. The plaintiff complained of the defendant for a violatioff of sections 109 and 124 of the Tenement House Law, and the defendant answered by a general denial. The plaintiff introduced in evidence a stipulation made by the parties to the action that the building was a tenement house and was owned by the defendant; that on July 23, 1913, one Mamie Brown occupying apartments on the second floor rear thereof used the same for the purpose of prostitution and was arrested and found guilty by a magistrate and sentenced to two months’ imprisonment; that on July 23, 1913, one Rose Howard occupying apartments on the first floor thereof used the same for purposes of prostitution and was arrested, found guilty by a magistrate and sentenced to one month’s imprisonment. Having introduced this stipulation in evidence the plaintiff rested, whereupon the defendant was called on her own behalf; she testified that she had owned this property for six years; that twenty-two families occupied the house, four families on each floor. She was then asked whether she at any time learned that any of the tenants had been accused of the improper use of the apartments, to which she answered, “ No.” This question was objected to as incompetent, immaterial and irrelevant; that under the statute the witness should not be permited to show the contrary. That objection was overruled. The defendant then testified that there were twenty-two families in the house and that she never at any time knew of any violation of this statute; that on July 24, 1913, she received notice from the police department as to the conviction of two of her tenants and as soon as she received the notice she cleaned the place out,” ejecting both of these parties who had been convicted, and they were put out on July twenty-fifth; that her atténtion had never at any time been called to any violation of law in these apartments; that these tenants appeared to be husband and wife and everybody in the apartment said they were nice, quiet people; that she never had any report from any of her employees or any one else about the conduct of these people and no tenant ever made any complaint about them. The janitor of the tenement house was then called and testified that the apartments were perfectly respectable; that when she rented these apartments she made inquiries about them and was told that the Brown woman had a husband who was a waiter and the Howard woman had a husband who worked in the Hippodrome; that these were all the men she ever saw about these apartments and she never heard any complaints; that during the fifteen years that she had charge of these apartments no one else had ever been arrested from the building and there was nothing to indicate that the tenants were not perfectly respectable and the property used by respectable people; that one of these tenants was in for less than a month when she was arrested and the other was there for six months when she was arrested. Upon this testimony the court rendered judgment in favor of the defendant, and from that determination the plaintiff appealed to the Appellate Term where the judgment was affirmed. (85 Misc. Rep. 429.)

Section 109 of the Tenement House Law was amended by chapter 598 of the Laws of 1913. It prohibits the use of a tenement house or the lot or premises thereof for a lodging house or stable; for storage or handling of rags; for the purpose of prostitution or assignation of any description; for the keeping of a horse, cow, calf, swine, sheep or goat in a tenement house or on the same lot or premises thereof except outside of the fire limits, when not more than two horses may be kept on each lot or premises provided they are stabled at least twenty feet distant from any building used for living purposes. This prohibition was as to the use of the apartments in a tenement house and on its face would apply to tenants rather than to the owners. A person owning and renting a tenement house to various tenants of course would be prohibited from renting the premises for any purpose here prohibited; but each tenant would also be prohibited from using an apartment in the house for either of the prohibited purposes. It was a general prohibition against use, but the section itself provides no penalty or method of enforcing the prohibition. Section 124, which was in the original act before the amendment, provides penalties for a violation of the act and imposes such penalties upon the owner as well as upon the tenant. By the same act which amended section 109 (Laws of 1913, chap. 598) section 150 was also amended so as to provide that a person who solicits another to enter a house of prostitution or a room in a tenement house or any part thereof for purposes of prostitution; commits prostitution in a tenement house or any part thereof; or knowingly resides in a house of prostitution or assignation or ill-fame of any description in a tenement house; or keeps or maintains a house of prostitution, assignation or ill-fame of any description in a tenement house, shall be deemed a vagrant, and upon conviction thereof shall be committed to the county jail for a term not exceeding six months. This act also amends section 153 by providing that a tenement house shall be deemed to have been used for the purpose specified in the last two sections with the permission of the owner, agent and lessee thereof, if summary proceedings for the removal of the tenants of said tenement house or of so much thereof as is unlawfully used shall not have been commenced within five days after notice of such unlawful use served by the department, or having been commenced are not in good faith diligently prose-, cuted to final determination, and if there be two or more convictions in the same tenement house within a period of six months either under section 150 of this chapter or under section 1146 of the Penal Law; and section 154 which provides certain rules of evidence provides that proof of ill-repute or the common fame of the premises which are the subject-matter of the action or proceeding or of the inmates thereof or of those resorting thereto shall constitute presumptive evidence and it shall be presumed that such use was with the permission of the owner, agent and lessee. Thus sections 109, 150, 153 and 154 of this act were amended by the same chapter and at the same time, and I think these various amendements to the act must be read together to ascertain the intention of the Legislature in imposing these penalties for a violation of the act and providing for their enforcement. While it is quite true that in neither section 109 nor section 124 of the act is the imposition of the penalty made to depend upon the knowledge of the owner that the premises were used in violation of section 109, section 124 was in the act as originally passed, while section 109 prohibiting the use of a tenement house for the purpose of prostitution was not then in the act, but was added by chapter 598 of the Laws of 1913. It seems to me that the fair construction of these two sections, read in connection with all. amendments made in 1913, would indicate that the Legislature did not intend to inflict a penalty upon the owner of a tenement house where the violation was without his knowledge or permission; that when section 153 was amended by providing that certain facts would justify a presumption that such use was with the permission of the owner, and when section 154 was amended by providing that, in an action or proceeding for a fine, penalty or other punishment for a violation of the provisions of the chapter relating to prostitution, assignation or other indecency, proof of ill-repute or the common fame of the premises should constitute presumptive evidence that such use was with the permission of the owner, agent and lessee, such amendment would also apply to section 109, and to justify the imposition of the penalty some evidence of the permission or knowledge of the owner would be required. I should have considerable doubt as to the constitutionality of this act if a penalty was imposed upon the owner of'a tenement house for acts which he could not in the nature of things know of or prevent. It would certainly be a question whether inflicting such a penalty without giving an owner an opportunity to rebut the presumption of permission or knowledge would be the due process of law which is required before a person’s property shall be taken to satisfy a demand of either the State or an individual. (See Const, art. 1, § 6.) Under the provisions of section 109 of the act if any tenant at any time used any apartment for the purpose of “ prostitution or assignation of any description,” even though no one except the user of the apartment had knowledge of it or could have prevented such, the owner would be liable for the penalty prescribed. The owner of a tenement house certainly cannot be in every apartment at all times of the day and night, and it seems to me it could not have been intended to impose such a penalty upon an owner who in the utmost good faith has used every precaution to see to it that his tenants are reputable people, and where he has no notice or knowledge of any kind that any apartment has been or was to be used for an immoral purpose. I think this law can be given its full effect by holding that sections 153 and 154 applied to a proceeding to recover a penalty for a violation of section 109 as well as to the other sections for which penalties are prescribed. Giving the act this construction would make it consistent with justice and remove any possibility of a question as to its constitutionality, and I think it is not in violation of its express provisions.

If these views are correct, it follows that the judgment of the Municipal Court was right, and the determination appealed from should be affirmed, with costs.

Clarke and Hotchkiss, JJ., concurred; McLaughlin and Dowling, JJ., dissented.

McLaughlin, J. (dissenting) :

I am unable to agree with a majority of the court that the judgment here appealed from should be affirmed. Section 109 of the Tenement House Law (Consol. Laws, chap. 61 [Laws of 1909, chap. 99], as amd. by Laws of 1913, chap. 598) provides, among other things, that “ No tenement house, or any part thereof, or the lot or premises thereof, shall be used for the purpose of prostitution or assignation of any description.” The defendant admitted that her premises were used for that purpose on two different occasions. This made her liable to the penalty provided in section 124 of the same law. The liability, as I read the statute, does not depend upon knowledge.

It may be conceded that the statute is harsh and drastic, but that was a matter for the consideration of the Legislature when it was passed. The Tenement House Law was taken from the Tenement House Act (Laws of 1901, chap. 334, as amd.), which was passed after a full report had been made to the Legislature by a tenement house commission appointed under chapter 279 of the Laws of 1900. A perusal of its report, of which the court can take judicial notice (Tenement House Department v. Moeschen, 179 N. Y. 325), will show why the statute under consideration was passed. A recovery of the penalty under the statute does not depend upon proof of knowledge on the part of the owner of premises, but simply the use to which the premises were put; in other words, the owner of premises must see to it that the same are not used for the purposes of prostitution, and if they are, then he at once becomes liable to pay the penalty prescribed, irrespective of his knowledge of that fact.

There are numerous instances where persons have been convicted of a criminal offense without proof of a criminal intent, or even knowledge that the act was committed. (People v. Werner, 174 N. Y. 132; People v. West, 106 id. 293; People v. D’Antonio, 150 App. Div. 109; Commonwealth v. Kelley, 140 Mass. 441; People v. Roby, 52 Mich. 577.)

I think the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, and as there is no dispute of fact, judgment should be ordered for the plaintiff for the amount of the penalty.

Dowling, J., concurred.

Determination affirmed, with costs.

NOTE ON PROSTITUTION.

(See Note on Bawdy Houses, Vol. 22, p. 508.)

There is no such crime under the Code of Criminal Procedure as that of a common prostitute, but the crime exists under the Act of 1881, ch. 187, as amended by see. 1 of the Act of 1887, ch. 17, and is triable only in a Court of Special Sessions, except where the case is certified to the Grand Jury, pursuant to see. 57 of said Code. People v. Cowie, 88 Hun, 498.

The fact that a woman is a common prostitute, at the time when tne warrant is issued, is sufficiently made out by proof of her improper and lascivious conduct. People v. Cowie, 88 Hun, 498.

A female may be legally confined in a house of refuge, upon a record of conviction adjudging her to be a common prostitute. The Act of 1881, ch. 187, is not unconstitutional because it provides a different term of imprisonment for females of a certain class, from that which is provided for others. People ex rel. Duntz v. Coon, 67 Hun, 523.

White Slave Act.

Act of Congress of 1910 providing for punishment of any one transporting females in interstate or foreign commerce, for immoral purpose is constitutional. Hoke v. U. S., 227 U. S. 308; Athanasaro v. U. S., 227 U. S. 326; Wilson v. U. S., 232 U. S. 563; Matter within prohibition, U. S. v. Vaughn, 209 Fed. 719.

Defendant may be within act though not financially concerned in traffic in women. Johnson v. U. S., 215 Fed. 679.

When offence complete. Wilson v. U. S., 232 U. S. 563.

Defenses.

Previous immorality of female no defense to prosecution for bringing her into state for purpose of prostitution. McDowell v. State, (Tex. Cr. Ct.) 155 S. W. 521.

Nor is such previous immorality a defense to prosecution for violation of the White Slave Act. Suslak v. U. S., 213 Fed. 913.

No defense to prosecuton for violation of U. S. Act that woman transported was wife of defendant. Cohen v. U. S., 214 Fed. 23; People v. Duncan, 134 Pac. Rep. 797.

Form of information. Peo. v. Paul, 167 Ill. A. 557 (pandering), 734-19.

Indictment held sufficient. People v. Pizzi, 170 Ill. 537.

Pandering.

Where accused took a female to a house of prostitution and applied to the keeper of the house to allow the woman to go to work there as a prostitute, and she was allowed to remain there that night and until she was arrested by the police officers the next day, accused was guilty of procuring a place as inmate for a woman in a house of prostitution in violation of St. 1911, p. 9, though the woman was received only on condition that she should not receive visitors until she had obtained the consent of the police to practice prostitution and passed the clinic, which she did not do because of her arrest. People v. Hirsch (Cal.), 132 Pac. Rep. 1062.

One who enters a house of prostitution for the purpose of plying the calling of a prostitute and remains there, awaiting only the procuring of a medical certificate and consent of the police authorities, is an inmate of such house while remaining there for such purpose. Id.

If a husband allows or permits ” his wife to remain in a house of prostitution, he is guilty; he need have had nothing to do with placing her therein. People v. Duncan, 22 Cal. A. 530, 134 Pac. Rep. 797.

But not so if he has used all lawful means to cause her removal, or was anxious to have her leave and tried in all reasonable ways to induce her to do so. Id.

It would be no defense for the husband to allege that she was a prostitute before their marriage. Id.

Evidence held sufficient in charge of attempt to pander. People v. Marks (Cal.), 142 Pac. Rep. 98; Edmunds v. State (Tex.), 132 Pac. Rep. 923.

The procuring of a room in a house of prostitution with intent that a female should occupy it for purposes of prostitution in an attempt to commit the crime of pandering, although after occupying such room for a short time she refused to engage in sexual intercourse. People v. Grubb, 141 Pac. Rep. 1051.

In a prosecution for enticing a woman into the state for immoral purposes evidence of correspondance between the parties before the woman entered the state and his acts toward her when in her company temporarily out of the state is admissible to show the circumstances under which accused brought her into the state. Holland v. State, 163 S. W. 781 (Ark.).

Though accused subsequently married her, she may under the provisions of the act be a competent witness against him. Id.

As to indictment and information as to pandering. See Stevens v. State (Tex.), 150 S. W. 944; Hewitt v. State (Tex.), 167 S. W. 40.

The manager of a house of prostitution who engaged the voluntary inmates thereof, directed- their activities and shared in their earnings may be convicted of knowingly receiving the proceeds of prostitution under the provisions of section 2460 of the Penal Law. People v. Fegelli, 32 N. Y. Crim. 5; 163 App. Div. 576.

A married woman may be a prostitute. State v. Phillips, 26 N. D. 206.

In prosecution for living on earnings of prostitute, evidence that woman was a prostitute and lived with defendant in another state just before coming into state is admissible to show defendant’s knowledge that she was a prostitute. People v. Reitzke, 21 Cal. 740; 132 Pac. Rep. 1063.

An information which fails to designate the female procured by defendant as an inmate for a house of prostitution held to be insufficent. People v. Jackson, 181 Ill. 713.

Information need not show particular house of prostitution of which woman was induced to become an inmate. People v. De Martini, Cal. A. 142 P. 898.

Indictment under statute making it a felony for person to permit his wife to be in a house of prostitution held sufficient. Ex parte Jackson, (Nev.) 148 P. 719.

See U. S. v. Flasspoller, 205 Fed. 208, where held insufficient. State v. Thorn, 92 Kan. 436. 
      
       Amed. by Laws of 1913, chap. 591.—[Rep.
     