This is an appeal from a judgment for damages for the death of plaintiff’s intestate, who was a policeman in the city of Hew York. The appellants are the lessees and occupants of á building known as Ho. 10 Vestry street, in which they carried on a wholesale glass business. At one corner of this building there was an elevator shaft, entirely separated and inclosed from the rest of the building by wooden and glass partitions extending from the basement to the top floor, and in which there were doors leading from the shaft to the several floors of the building. At the street level there were doors the whole width of the shaft leading from it to Vestry street, but not otherwise furnishing access to the interior of the building. The elevator was used for the purpose of receiving and shipping freight, and transporting it from one floor of the warehouse to another. On December 8, 1906, when patroling his beat, between seven and eight o’clock in the evening, the deceased noticed that one of the doors leading from the street into the elevator shaft was ajar. He apparently did not know where the door led, and, doubtless, supposed that it led into the' building, for he pushed the door open and stepped through it, being precipitated to the bottom of the shaft and receiving the injuries from which he died. At this time the building was vacant and unlighted and had been for some hours. The elevator car or platform was standing at the second story, the power, which was furnished from outside, having been turned off. A gate had been provided to guard the entrance to the shaft from Vestry street when the doors were opened. This gate was so arranged that it could be pushed up, out of the way, and when so pushed up was kept in place by a wire nail stuck into the woodwork, which could be easily removed when it was desired to lower the gate. At the time of the accident the gate was pushed up and secured. There is no question as to how the accident happened, nor as to the reasonableness of the verdict, the only question being whether upon the undisputed facts the plaintiff is entitled to recover.
*476It must be conceded that, under the circumstances, no liability would attach to the defendants at common law. Admitting that decedent was acting in the line of his duty, and, therefore, was not a mere trespasser, it cannot be said that he went upon the premises' by invitation, or that he was, at the best, more than -a licensee. (Cooley Torts [3d ed.], 1268; Baker v. Otis Elevator Co., 78 App. Div. 513; Eckes v. Stetler, 98 id. 76.) The plaintiff insists, however, that even if the common law imposed no duty upon the owner of the premises to keep them safe for the benefit of mere licensees, yet the Building Code of the city of Hew York does impose such an obligation, and that its violation justifies the present judgment.
The following is the section of the code relied upon : “ Sec. 95. Elevators and Hoistways.—In any building in which there shall be any hoistway or freight elevator or well hole not inclosed'in walls constructed of brick or other fireproof material and provided with fireproof doors, the openings thereof through and upon each floor of- said building, shall be provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the Department of Buildings; and when in the opinion of the Commissioner of Buildings having jurisdiction, automatic trapdoors are required to the floor openings of any un in closed freight elevator, the same shall be constructed so as to form a substantial floor surface when closed and so arranged, as to open and close by the action of the elevator in its passage either ascending or descending. The said Commissioner of) Buildings shall have exclusive power and authority to require the openings of. hoistways or hoistway shafts, elevators and wellholes in buildings to be inclosed or secured by trapdoors, guards or gates and railings, Such guards or gates shall be kept closed at all:times, except when in actual use, and the trapdoors shall be closed ¡at the close of the business of each day by the occupant or occupants of the building having the use or control of the same.”
This ordinance was adopted by the board of aldermen pursuant to legislative authority. (Laws of 1897, chap. 378, § 647 ; Laws of 1901, chap. 466, § 407; Laws of 1904, chaps. 602, 628, § 2.) Similar provisions enacted in prior acts of the Legislature were repealed (Laws of 1874, chap. 547, § 5; Laws of 1882, chap. 410, § 453 ; *477Laws of 1892, chap. 275, § 28), and the Building. Code thereafter had the same force within the corporate limits of the city as a statute passed by the Legislature. (City of New York v. Trustees, 85 App. Div. 355 ; affd. on opinion below, 180 N. Y. 527; Kenney v. Brooklyn Bridge Stores Co., 121 App. Div. 684.) It is,, however, not a statute, but merely a municipal ordinance. (Schnaier & Co. v. Grigsby, 132 App. Div. 854.) It is not necessary to consider whether a municipality may, by ordinance, create a right of action between individuals, because the ordinance in question does not purport or undertake to do so. It imposes a duty upon the occupants and owners of certain premises, and specifies the penalties that shall attach in ease of violation. (See Building Code, §§ 156-158.) It is well settled, of course, that where a duty exists irrespective of the ordinance, the violation of an ordinance enacted to regulate the performance of that duty is competent evidence of negligence in such performance! The question at issue, therefore, turns » upon whether or not, irrespective of the ordinance, the appellants owed to deceased any duty of safeguarding their premises. That question seems to be answered so far as this department is concerned by Eckes v. Stetler (supra). In that case a fireman, who was upon the defendant’s premises in the lawful performance of his duty of extinguishing fires, was injured in consequence of the failure of the defendants to comply with a statute (Laws of 1882, chap. 410, § 453) requiring all hoistways, wellholes, trapdoors and iron shutters to be closed at the completion of the business of each day. The statute expressly provided for compensation to be paid in case any officer of the fire department should be killed or injured in consequence of a failure to obey the requirement of the act, such compensation to be recovered “ in an action to be instituted by said board ” (of fire commissioners). The plaintiff elected to sue in his own behalf and not through the fire commissioners, and this squarely raised the question whether the law gave him a right of action other than the vicarious right especially prescribed. This court held that it did not; that, aside from the statute, the defendant owed liiin no duty to safeguard the interior of the building; that the statute imposed no such duty as between the plaintiff and the defendant which of itself gave a right of action, and that since, apart from the statute, it was not culpably negligent to leave the hoistway uncovered, the *478failure to cover it, although contrary to law, was not evidence of negligence. That no common-law duty rests upon' an owner of a building to take any particular steps to protect a licensee who comes upon it without invitation was also held in Baker v. Otis Elevator Co. (78 App. Div. 513). There are undoubtedly cases in which the failure to observe a law or ordinance similar to the ordinance invoked herein has been deemed to be an important element of a right to recover, but in each one, at least so far as concerns this State, there has been, back- of the violated law., a duty to the person injured,, and the violation of the law has been considered evidence .of the failure to perform that duty. In McRickard v. Flint (114 N. Y. 222) the plaintiff was upon defendants’ premises pursuant to an implied invitation, coming -there during business hours upon a matter of- business. To him the defendants owed a common-law duty of care, and the violation of the statute was" evidence of a failure to observe that duty. So, in Pauley v. S. G. & L. Co. (131 N. Y. 90), the defendant owed" to its employees the duty of furnishing'reasonably safe means, of egress, and the requirement that fire escapes should be provided was one regulating the performance of that common-law duty, and its .disobedience constituted negligence in that regard. The same distinction is to be observed in all of the cases relied upon by .the plaintiff. From a comparison of the cases cited upon both briefs we are impelled to concur with the proposition contended for by-the" appellants that the violation of the ordinance (assuming it to have all the force of a statute) will furnish evidence of the violation of a common-law duty, but that it is the neglect of such duty and not the violation of the ordinance which gives rise to the cause of action.. ’ Consequently, if there be no common law duty, no cause of action can be predicated upon the violation of the ordinance.
It follows that the judgtnent and order should be reversed' and. a new trial granted, with costs to the appellants to abide the event., •
Miller, J., concurred.
Judgment and order affirmed, with costs.