This is an action to recover damages for negligently causing the death of plaintiff's intestate, who lost his life in a factory fire on the sixth and uppermost floor of the building Nos. 129-131 West 31st street, in the borough of Manhattan in the city of New York. A corporation known as Charles A. Hetzel Son Company occupied and used the southwest corner of the floor — a space 23 feet wide and 35 feet deep, fronting on West 31st street — for the manufacture of combs from ivory and celluloid. This corporation held the premises under a lease from the H.V. Keep Shirt Company, a New Jersey corporation, which in turn was a tenant of the entire sixth floor under a lease from the owner of the building, the defendant Duffy, and utilized for its own purposes all of the same which was not rented to Charles A. Hetzel Son Co.
Michael J. Goetz, the plaintiff's intestate, was in the employ of the latter corporation which, for convenience, is called the Hetzel Company. The Hetzel factory was partitioned off from a hallway which ran from the front of the building backward toward the rear and from the loft occupied by the Keep concern at the back. In the front corner of the Hetzel factory next to the hall was an office seven feet wide and eighteen feet long, separated from the workroom by a partition. A door through this partition led from the office into the workroom, and access into the office from the hall was obtained through a door opposite. At the rear of the workroom where it adjoined the Keep premises was a V-shaped opening near the west wall, described in the evidence as a little window in the partition at an elevation of three feet from the floor. The only way out of the workroom into the hall was through the door opening into and that opening out of the office. At the rear of the hall was a fire escape.
On the 11th day of November, 1909, a fire suddenly broke out in the Hetzel factory, evidently originating from the fall of sparks among the scraps of celluloid. *Page 56 There were seven persons in the workroom, of whom only two escaped death. The plaintiff's intestate endeavored to make his way out through the door leading into the office. This was a self-locking door. It was shut and he was unable to open it. The only remaining available exit was the window in the rear partition about three feet above the floor. Two of the employees got out that way by stepping upon a small barrel below the window; but Goetz was not able to do so and he was burned to death.
His administratrix brought this action to recover damages for the negligence resulting in his death, making defendants his employer, the lessee from whom the employer had a sublease, and the owner of the building. The complaint against the lessee and the owner was dismissed and the dismissal has been sustained by the Appellate Division. I think the case presented a question for the jury, certainly as against the owner. The question as to the liability of the tenants of the H.V. Keep Company is more doubtful. The liability of the owner is predicated upon sections 82 and 94 of the Labor Law (Laws of 1909, ch. 36; Cons. Laws, ch. 31) as in force at the time of the fire. By chapter 461 of the Laws of 1913 the Labor Law was extensively amended in relation to fire escapes and exits in existing factories, the future construction of factory buildings, and the limitation of the number of occupants in factories. These amendments constitute the existing law on the subject; but in the present case we have to determine the obligations resting upon the respondents under the law as it was at the time of the fire and the time of the trial.
Section 82 of the Labor Law then provided, among other things: "Such fire escapes as may be deemed necessary by the commissioner of labor shall be provided on the outside of every factory in this state consisting of three or more stories in height. Each escape shall connect with each floor above the first, and shall be of sufficient *Page 57 strength, well fastened and secured, and shall have landings or balconies not less than six feet in length and three feet in width, guarded by iron railings not less than three feet in height, embracing at least two windows at each story andconnected with the interior by easily accessible and unobstructedopenings." Section 94 defined the term tenant-factory as used in the Labor Law to be "a building, separate parts of which are occupied and used by different persons, companies or corporations, and one or more of which parts is so used as to constitute in law a factory." It prescribed that the owner instead of the respective lessees or tenants should be responsible for the observance and punishable for the non-observance of the provisions of section 82; and required the lessee or tenant of any part of a tenant-factory to permit the owner, his agents and servants to enter and remain upon the demised premises whenever and so long as might be necessary to comply with the provisions of law, the responsibility for which was thereby placed upon such owner.
The building in which the fire occurred was a tenant-factory within the meaning of the statute. Construed together, the effect of sections 82 and 94 of the Labor Law was to require the maintenance of a fire escape on the floor on which the Hetzel establishment was located "connected with the interior by easily accessible and unobstructed openings;" and this irrespective of any demand by the commissioner of labor or the superintendent of buildings, performing like functions in the city of New York. (Willy v. Mulledy, 78 N.Y. 310; McRickard v. Flint,114 N.Y. 222; Arnold v. National Starch Co., 194 N.Y. 42.) The obligation thus to maintain an accessible and unobstructed fire escape was imposed upon the owner and he could not avoid liability by delegating the performance of the duty to others. A fire escape was in fact provided; but there was evidence which should have taken the case to the jury to the effect *Page 58 that access thereto was so obstructed as to render it of little or no avail in such an emergency as arose when the fire suddenly broke out in the Hetzel factory. It needs no argument to show that a fire escape is useless if the way to it is impassable.
The Appellate Division thought it clear that the owner discharged faithfully and efficiently every duty imposed upon her by the statute, were it not for the alterations made by the defendant H.V. Keep Company in connection with the defendants Hetzel; and that the owner could not be chargeable with these, because the requirement that the fire escape should be connected with the interior by easily accessible and unobstructed openings did not refer to the whole interior of the floor but referred only to the opening through the wall adjacent to the fire escape. I construe the provision differently. I agree that where there is only one factory establishment in a building it was necessary only to have fire escapes on the floor occupied by that factory; but I think the statute made it essential that such fire escapes should be accessible from the factory wherever it might be situated; and that the duty was imposed upon the owner to permit no interior construction by his immediate tenants which should interfere substantially with or obstruct such access by the factory employees. It seems to me that section 94 of the Labor Law could have meant nothing less than this, when it provided in express terms that the owner, whether or not he was also one of the occupants, should be responsible for the non-observance of the provisions of section 82, and that the lessee or tenant of any part of a tenant-factory should permit the owner or his representatives to enter and remain upon any part of the demised premises in order that he might fulfill his obligations in this respect.
It would seem that the immediate tenant who co-operated with the sublessee to obstruct free access to the fire escape ought to be as responsible as the owner of the *Page 59 building; but the language of the statute appears to have been designed to relieve him from liability, when it says that the owner "instead of the respective lessees or tenants" shall be responsible. Unlike the defendant Hetzel Company the defendant H.V. Keep Company owed no common-law duty to the plaintiff's intestate. If liable at all it must be by virtue of some statute; and the statutory provision relied upon to charge the owner of the building imports in pretty clear language an intent to absolve the tenant as such. The word instead as used in the sentence quoted conveys the idea that while the owner is to be held responsible the tenant is not.
For these reasons, I favor a reversal of the judgment as to the owner but an affirmance, with costs, as to the respondents Keep.