Smith v. Holding Corp.

• Decision Date: 31 August 1962
• Citation: 39 Misc.2d 129,240 N.Y.S.2d 263
• Parties: John SMITH et al., Plaintiffs, v. HOLDING CORP., Defendant. *
• Court: New York City Municipal Court

Page 263

240 N.Y.S.2d 263

39 Misc.2d 129

John SMITH et al., Plaintiffs, v. HOLDING CORP., Defendant. ^*

Municipal Court of City of New York, Borough of Queens Sixth District.

Aug. 31, 1962.

John Smith et al., in pro. per.

E. Edan Spencer, New York City (Irving B. Friedman, of counsel), for defendant.

DANIEL E. FITZPATRICK, Justice.

If, as Tom Paine has noted, there are times that try men's souls, there are also cases which try a Judge's sense of justice. The word 'case' is used deliberately to conform to popular legal usage. Although, Quiller-Couch warns us, we cannot thus properly speak of 'the case of Mr. Jones or Mr. Smith', unless we refer to the cases in which those gentlemen will ultimately be buried. So much for the purists.

In the matter litigated before us there are elements which urgently cry for judicial succor, if not rectification. Nonetheless, we must remind the parties that the powers of the Municipal Court are limited. As a creature of statute it may not exceed the orbit of the legislative leash. Within this circumscription we do what we can.

The plaintiffs sue in negligence to recover for property damage arising from the following facts: As tenants of the defendant they occupied one of the apartments on a lower floor. The defendant owns and operates a large, high-rise multiple apartment house development. In the plaintiffs' apartment, there occurred, on two occasions, a back-up of sewage. The plaintiffs, who were absent each time, returned to their abode to find the floors and carpeting covered with excrement and filth. The defendant was duly notified of the first occurrence. The plaintiffs, parents of a child of tender years, were understandably concerned. Upon the happening of the second occurrence, receiving no satisfaction, they commenced this action. The plaintiffs would seem, therefore, to have made out a cause of action on both actual and constructive notice of the condition about which they complain.

The difficulty with the plumbing system of the apartment house of defendant seems to stem from the inadequacy of the waste line. The defendant's defense is not only one of no negligence at all, but that if negligence can be spelled out it is not responsible because it has been compelled to maintain the situation complained of by force of command of the State Division of Housing. The outline of their position follows: Since the apartment house building was constructed with and financed by State funds under the Public Housing Law, they notified the State Division of Housing of the condition and requested instructions. They were told by some genius to provide a 'tell-tale.' This, the Court is informed, is accomplished by inserting a piece of pipe in the waste-line at a point anterior to the entry of the waste-pipes from the various apartments. This pipe extrudes to the exterior of the building and if there is an impending back-up a 'tell-tale' drip will give warning. They did this. Further, they instructed their superintendant and his assistants to keep the tell-tale under observation. At the first sign of any waste dripping therefrom, they were to sound the alarm. Since we live in a civilized society with its concomitant complexities and contradictions, it is no surprise to this Court that a City Health Inspector, upon discovering the existence of the tell-tale, ordered it removed as a menace to public health. The defendants asked of the health inspector what they could do to correct the condition. He replied that the Administrative Code of the City of New York made no provision for such a situation. Such are the consequences of concurrent and overlapping jurisdiction. The defendant appealed to the State Division of Housing, which directed it to comply with the City Health Department's order. The tell-tale was removed. Then followed the resulting calamity in the plaintiffs' apartment.

The defendant contends that having done everything within its power to correct the condition and having complied in all respects with the Administrative Code, which it was informed authoritatively makes no provision for such a situation, it cannot be guilty of any negligence. It urges if it is continuing an undesirable condition, it is not doing so wilfully, but on the contrary, unwillingly, by direct command of the State Division of Housing and the City Department of Health. Consequently, it maintains it should be absolved from any guilt. If this be correct, plaintiffs would seem to be without any redress. Having been weaned on the tradition of the old Common Law that there is no wrong without a remedy, this Court will take a longer look at this defense. That one, under color of law, can compel another to maintain a nuisance to the detriment of an innocent third party, must shock the conscience not only of the Chancellor, but also of this Court. The weak should not do the bleeding while the strong struggle. For if this defense be sound, bureaucratic arrogance has reached a peak and remedial legislation is needed to cure the nuances of the Administrative Code; although a strict diet has been suggested as more appropriate to that obese compendium.

Counsel have not aided the Court by submission of any briefs. Independent research has provided the lighted candle in the outer...