Tenement House Dep't of City of New York v. McDevitt

• Decision Date: 25 May 1915
• Citation: 109 N.E. 88,215 N.Y. 160
• Parties: TENEMENT HOUSE DEPARTMENT OF CITY OF NEW YORK, v. McDEVITT.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 160

109 N.E. 88

TENEMENT HOUSE DEPARTMENT OF CITY OF NEW YORK,

v.McDEVITT.

Court of Appeals of New York.

May 25, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Proceedings by the Tenement House Department of the City of New York against Lucy A. McDevitt for a penalty. From a judgment of the Appellate division (165 App.Div. 367, 150 N.Y.Supp. 583), affirming a determination of the Appellate Term, affirming a judgment of the Municipal Court of New York City in favor of defendant, plaintiff by permission appeals. Affirmed.

See, also, 165 App.Div. 977, 150 N.Y.Supp. 1114.

John P. O'Brien, of New York City, for appellant.

Harold M. Phillips, of New York City, for respondent.

CARDOZO.

The action is brought to recover a penalty for the violation of section 109 of the Tenement House Law (Laws 1909, c. 99), as amended by Laws 1913, c. 598. The charge is that the building has been used for the purpose of prostitution. The building is a tenement house, and is the home of 22 families. The defendant is the owner. It is conceded that on July 23, 1913, two women, one the occupant of an apartment on the first floor, and the other the occupant of an apartment on the second floor, used their rooms for the purpose of prostitution, and that they were arrested, found guilty, and sentenced to imprisonment. One of the women had lived in the house for six months; the other had lived there for a week. There is no evidence of previous misconduct by either of them. A stipulation conceding that they offended on a single day makes up the plaintiff's case. The owner testified that the unlawful use was without her knowledge. She testified that she believed the tenants to be respectable. Testimony to the same effect was given by the janitor. As soon as the police gave notice of the arrest, the women were evicted. The trial judge held, upon sufficient evidence, that the defendant and her agent were innocent of any willful wrong. He held that they had not even been shown to have been negligent. The facts as he found them must be accepted in this court. The question to be determined is whether a tenant's wrongful use of an apartment on a single day subjects the owner, irrespective of knowledge or of opportunity for knowledge, to the statutory penalty.

Section 109 of the Tenement House Law (Consol.Laws, c. 61) as amended in 1913 (Laws 1913, c. 598), provides as follows:

“No tenement house, or the lot or premises thereof shall be used for a lodging house or stable, or for the storage or handling of rags. 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. No horse, cow, calf, swine, sheep or goat shall be kept in a tenement house or on the same lot or premises thereof except that, outside of the fire limits, not more than two horses may be kept on such lot or premises, provided they are stabled at least twenty feet distant from any building used for living purposes, and that such stabling is not detrimental to health in the opinion of the department charged with the enforcement of this chapter.”

The provision, “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,” came into the section for the first time through the amendment of 1913. Automatically, there became attached to the violation of the statute, as thus enlarged, the penalties which section 124 of the Tenement House Law had already prescribed for the violation of any provision of that chapter of the laws:

“The owner of any tenement house or part thereof, or of any building or structure upon the same lot with a tenement house, or of the said lot, where any violation of this chapter or a nuisance exists, and any person who shall violate or assist in violating any provision of this chapter, or any notice or order of the department charged with its enforcement, shall also jointly and severally for each such violation and each such nuisance be subject to a civil penalty of fifty dollars.” Tenement House Law, § 124.

[1] It is for the penalty thus prescribed that the defendant has been sued. We think the plaintiff failed to prove that the defendant's building had been used, in the sense contemplated by the statute, for the purpose of prostitution. To charge an owner with liability, there must be more than a single act of vice in the seclusion and secrecy of a tenant's apartment. Against such an offense, a landlord, however vigilant, is helpless. To make the owner liable, it must appear that the building has been “used” for the purpose of prostitutes, and this imports, not an isolated act of vice, but some measure, even though brief, of continuity and permanence. To say that a building is used for such a purpose means, in substance, that it is kept or maintained for such a purpose. Many well-considered cases sustain that construction of the statute. Thus, in Commonwealth v. Patterson, 138 Mass. 498, the defendant was charged with keeping and maintaining a tenement that was “used” for the illegal sale of intoxicating liquors. Evidence was given that two sales had been made. The trial judge held that if the defendant had made either of the sales, the jury must find him guilty. The Supreme Judicial Court of Massachusetts reversed the judgment. It held, in an opinion by Holmes, J., that a building cannot be said to be “used” for the illegal sale of intoxicating liquors, within the meaning of the statute which makes it a nuisance, “on the strength of a single casual sale, made without premeditation, in the course of a lawful business. Not only do the words ‘used’ and ‘keep or maintain’ import a certain degree of permanence, but the same idea is usually a part of the conception of a nuisance.” There was a like ruling in Commonwealth v. Hayes, 150 Mass. 506, 23 N.E. 21; and in State v. Stanley, 84 Me. 555, 24 Atl. 983. In Regina v. Davies, [1897] 2 Q.B. 199, the court construed a statute by which the owner or occupier of a house or room, who kept or used it for the purpose of unlawful gaming carried on therein, was made liable to a penalty. The decision was that a single unlawful game, played by the defendant and his friends, without evidence that any one else had ever played an unlawful game at the defendant's house on any other occasion, did not justify a conviction. A like construction has been given to statutes prohibiting the use of buildings for the purpose of prostitution. State v. Irvin, 117 Iowa, 469, 91 N.W. 760;State v. Ruhl, 8 Iowa, 447. In all these cases, some element of permanence has been held essential to a conviction. It is true, of course, that a building may be so used even on a single day as to justify the inference, with but slight additional evidence, that the illicit use has been continuous. But the inference in such a case is one of fact, and not of law, and must be drawn, if at all, by the trial judge in the light of all the circumstances. The plaintiff makes no claim in this case that such an inference is possible. It takes its stand upon the broad position that a single act of vice leads as a matter of law to the conclusion that the building in which the act occurs is one used for prostitution. We do not need to inquire at this time whether the Legislature has the power to visit on the owner a penalty so drastic. At least, if it has that purpose, it must say so in plain words. We think it has not said so yet.

When we look to the context of this statute, our view of its meaning is confirmed. The same section that prohibits the use of a tenement house for prostitution prohibits its use for a lodging house or stable, or for the storage or handling of rags. In these latter prohibitions, the element of continuity is manifest. We ought not to hold that in the first sentence of the statute the word “use” means one thing, and in the second sentence something else. The same section goes on to prohibit the keeping of horses, cows, and other animals in the tenement or on the lot, and again there is involved the prohibition of a continuous relation. The same thought, indeed, is latent in the language of section 124, which imposes the penalty. That section is applicable to many other violations than those resulting from the infringement of section 109, and all will be found to involve some measure of continuity. There is significance in the form of words in which the penalty is declared: “The owner of any tenement house * * * where any violation of this chapter or a nuisance exists,” shall be liable, etc. “Where any violation of this chapter or a nuisance exists”-these words suggest more than a single act; they suggest a permanent state; the offense must, so to speak, have attached itself to the building.

[2] We hold, therefore, that an owner is not liable for a penalty because of a single act of vice, undiscovered and undiscoverable, either by him or by his agent. The penalty is imposed where the building, or some part of it, has been kept or maintained by the occupant for the purpose of prostitution. If, however, there has been a “use” for prostitution in that sense, we think it is not a defense, that the use was unknown to the owner. The statute does not make his liability dependent upon knowledge or even upon negligence. It makes his liability dependent upon the prohibited use. If use is interpreted to mean, not an isolated act, but a practice or relation, the statute, we think, charges the owner with the duty to inform himself of the conditions prevailing in his building. In the long run, and looking, as legislation must, to the average results, the law, as thus construed, is not likely to work injustice. If the occupant of an apartment has used it for indiscriminate intercourse with men, has used it in the sense that she has kept or maintained it for that purpose ( Commonwealth v. Cook, 121 Metc. [Mass.] 93; State v. Ruhl, 8 Iowa, 447,...