Tenement House Dep't of the City of New York v. Moeschen

• Citation: 72 N.E. 231,179 N.Y. 325
• Parties: TENEMENT HOUSE DEPARTMENT OF THE CITY OF NEW YORK v. MOESCHEN (two cases).
• Decision Date: 15 November 1904
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 325

72 N.E. 231

TENEMENT HOUSE DEPARTMENT OF THE CITY OF NEW YORK

v.MOESCHEN (two cases).

Court of Appeals of New York.

Nov. 15, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Two actions by the tenement house department of the city of New York against Katie Moeschen. In the first action, appeal by permission from a judgment of the Appellate Division (85 N. Y. Supp. 1148), affirming the determination of the Appellate Term (84 N. Y. Supp. 577), permitting a judgment of the Municipal Court in favor of plaintiff; and, in the second action, appeal by defendant, by permission, from an order of the Appellate Division (85 N. Y. Supp. 704), affirming an order of the Special Term (85 N. Y. Supp. 19), granting injunction to enjoin defendant from maintaining a school sink on certain premises in the city of New York. Affirmed.

In both cases the same question has been certified to this court, to wit: ‘Is section 100 of chapter 334, p. 912, of the Laws of 1901 of this state, constitutional?’ This act is entitled ‘An act in relation to tenement houses in cities of the first class.’ Short title, ‘Tenement House Act.’ Section 100 is as follows: ‘In all now existing tenement-houses, all school sinks, privy vaults or other similar receptacles used to receive fecal matter, urine or sewage, shall before January first, nineteen hundred and three, be completely removed and the place where they were located properly disinfected under the direction of the department of health. Such appliances shall be replaced by individual water-closets of durable non-absorbent material, properly sewer connected, and with individual traps, and properly connected flush tanks providing an ample flush of water to thoroughly cleanse the bowl. The seats of the water-closets shall be hinged and attached to the bowl of the closet. Each water-closet shall be located in a compartment completely separated from every other water-closet. The floors of the water-closet compartments shall be water-proof as provided in section ninety-five of this act. Such water-closets may be located in the yard if necessary, and if so, long hopper closets may be used; all traps, flush tanks and pipes shall be protected against the action of frost. There shall be provided at least one water-closet for every two families in every now existing tenement house. Except as in this section otherwise provided such water-closets and all plumbing in connection therewith shall be in accordance with the ordinances and regulations in relation to plumbing and drainage.’Louis Marshall, Adolph Bloch, and William L. Mathot, for appellant.

John J. Delany, Corp. Counsel (Theodore Connoly, of counsel), for respondent.

BARTLETT, J. (after stating the facts).

The defendant is the owner of a tenement house (No. 332 East Thirty-Ninth street) in the city of New York valued at $16,500, in which she has an equity above incumbrances of about $3,500. The defendant was duly served with an order on the 11th day of April, 1903, by the plaintiff herein, ordering her to remove the school sink from said property, and to replace the same by one water-closet for every two families in the building, under said section 100. Defendant was also informed in the notice that, if she failed to comply with the terms thereof, proceedings would be instituted against her according to law. These premises were occupied by 20 families, aggregating 48 persons, more or less. The defendant having failed and refused to comply with the order, the actions already referred to, for the recovery of the penalty provided by said act, and for an injunction, respectively, were commenced. The defense interposed in each case is the unconstitutionality of section 100. The learned Appellate Division wrote an opinion in the action begun in the Supreme Court for an injunction, and, in determining the appeal in the action in the municipal court of the city of New York, adopted that opinion.

A question is discussed in the briefs on this appeal, that the introduction by defendant of testimony and proof was proper. In view of the fact that this testimony and proof were admitted over the objections and exceptions of the plaintiff, and that no appeal has been taken from such rulings, this question is not before us, and we express no opinion in regard to it.

It is well settled in this court and in the Supreme Court of the United States that the constitutionality of a statute may be determined by considering its language and the material facts of which the court can take judicial notice. People ex rel. Kemmler v. Durston, 119 N. Y. 569, 578,24 N. E. 6, 7 L. R. A. 715, 16 Am. St. Rep. 859; Health Department of N. Y. v. Rector, etc., 145 N. Y. 32, 50,39 N. E. 833,45 Am. St. Rep. 579;Powell v. Pennsylvania, 127 U. S. 678, 684, 685, 8 Sup. Ct. 992, 32 L. Ed. 253;Schollenberger v. Pennsylvania, 171 U. S. 1, 8, 18 Sup. Ct. 757, 43 L. Ed. 49. It is not the hardship of the individual case that determines the question, but rather the general scope and effect of the legislation as an exercise of the police power in protecting health and promoting the welfare of the community at large.

It is a well-recognized principle in the decisions of the state and federal courts that the citizen holds his property subject not only to the exercise of the right of eminent domain by the state, but also subject to the lawful exercise of the police power by the Legislature. In the one case, property is taken by condemnation and due compensation; in the other, the necessary and reasonable expenses and loss of property in making reasonable changes in existing structures, or in erecting additions thereto, are damnum absque injuria.

The single question is presented in this case whether the legislation under consideration is a lawful exercise of the police power, imposing upon the citizen only such expenses as are reasonable. We are of the opinion that, considering the facts in the case, the language of the section under review, and the expenses incurred in making the necessary changes required, the legislation is a proper exercise of the police power. There is much important and persuasive evidence of which we are permitted to take judicial notice.

The recent history of legislation on this subject is as follows: In 1884 the tenement house committee, acting under legislative command, submitted a report to the Senate February 15, 1885 (Senate Document No. 36 of 1885), showing the condition of the old privy vaults existing in the city of New York, and recommended ‘the abolition of all privy vaults in the city limits upon all property contiguous to all streets or avenues where sewers are laid.’ A law to that effect was passed (chapter 84, p. 96, of the Laws of 1887) as an amendment to section 653 of the consolidation act. In pursuance of this legislation the board of health abolished the privy vaults, and the owners of tenement houses were ordered to substitute water-closets in the house, or hopper closets or school sinks in the yard. In this report of 1884 the committee said: ‘School sinks are better than vaults, but water-closets are better than either. Nearly all the inspectors know where water-closets have been introduced in tenement houses, and they believe that, properly located and supervised, water-closets are practicable, even in the worst houses.’ The Governor in 1900 appointed a committee known as the ‘Tenement House Commission,’ in accordance with chapter 279 of the Laws of that year, to make a careful examination into the healthfulness of tenement houses in cities of the first class, and to make ‘such recommendations as it deems wise to enable the best and highest possible condition for tenement houses in said cities to be attained.’ This commission submitted its report to the Legislature in February, 1901. At page 149 thereof, after recommending the passage of section 100 of the tenement house act, the commission made the following statement: ‘These school sinks were in nearly every case found by the commission's sanitary inspectors to be in a horrible condition, and a serious menace to the health of the occupants of such houses and the neighboring houses. From their construction, it is very difficult to flush them, and the inspectors found many cases where they had not been flushed for weeks. In summer the stench is intolerable, and unquestionably causes a good deal of sickness. Moreover, the school sinks found in nearly all the buildings were in a horrible condition-in some cases simply indescribable. The commission therefore recommends that within two years all existing school sinks now used in connection with tenement houses be removed, and proper water-closet accommodations be substituted. The commission has not attempted to specify whether such water-closets shall be placed in the yard or within the tenement house. It has left this to the option of the owner. The commissioners realize that in some cases it might be difficult to protect such water-closets from the action of frost if they are located in the yard, but know that in any case they can be located in the house simply by giving up one room to such purpose. Every consideration of the public health demands that this action be taken, and the commission finds, after having estimates made, that the cost will not be so great as to make this measure an undue hardship upon the owners of tenement houses.’ This commission submitted a draft of the tenement house act, which was afterwards passed by the Legislature (chapter 334, p. 912, of the Laws of 1901). These reports to...