City of New York v. Foster

Scott, J.

(dissenting):

This is an appeal by defendant from an order of the Appellate Term which reversed a judgment of the Municipal Court in favor of defendant and ordered a new trial. The action is to collect a penalty for defendant’s failure to fireproof a dumbwaiter shaft in a tenement house. The question involved is a very narrow one, and is whether or not section 97 of the Building Code is applicable to houses erected before' the adoption of that Code.

Defendant is the owner of a tenement house in the city of N'eW York which Was erected in 1882, and which he acquired in 1895. It is not denied that the building conformed to all existing laws down to October 24,-1899, when the Building Code was adopted. On November 2, 1910, a notice of violation was served on defendant, the violation complained of being that the dumb-waiter shaft is constructed of non-fireproof material.” : Defendant was also notified that failure to correct the violation would subject him to a penalty. He refused to fireproof the shaft, and this action to collect the penalty followed.

The section of the Building Code involved reads as follows: Section 97. Dumb-waiter Shafts. All dumb-waiter shafts, except such as do not. extend more than three stories above the cellar or basement in dwelling houses, shall be inclosed in suitable walls of brick or with burnt clay blocks, set in iron frames of proper strength, or fireproof blocks strengthened with metal dowels, or such other fireproof material and form of construction as may be approved by the Commissioner of Buildings having jurisdiction. Said walls or construction shall extend at least three feet above the roof and be covered with a skylight at least three-fourths the area of the shaft, made with metal frames and glazed. All openings in the inclosure walls or construction. shall be provided with self-closing fireproof doors. When the shaft does not extend to the floor level of the lowest *265story, the bottom of the shaft shall be constructed of fireproof material.” The appellant raises various questions as to the constitutionality and reasonableness of, this section if it be construed to apply to existing buildings. These questions I do not propose to discuss, as they have been satisfactorily answered by the Municipal Court and the Appellate Term. The serious question, upon which the courts below differed, is whether or not the section is by its terms applicable to buildings existing when the Code was adopted. It seems to me to be quite clear that the section cannot be so read as to apply to houses already built, unless it is to be construed as operating retroactively. In Sturges v. Carter (114 U. S. 511, 519) the Supreme Court of the United States adopted Judge Story’s definition of a retroactive or retrospective law, as follows: “ Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective. ” It cannot be doubted, we think, that the section above quoted, if it applies to buildings erected before its adoption, is retroactive because it clearly creates a new obligation and imposes a new duty with respect to existent buildings. The question to he determined, therefore, is whether or not the section does operate retroactively. It may be conceded, although it is not entirely clear, that its language is capable of such construction; but we are confronted with a well-settled principle of statutory construction that it is not sufficient, in order to give a law retroactive effect, that its language, in its natural and ordinary meaning, is broad enough to include past transactions, so that it can be said, on reading it, that the enacting body may have intended to include them; but the language must be so clear and unmistakable that there is no escape from the conclusion that the enacting body did so intend. This rule was clearly stated in New York & Oswego M. R. R. Co. v. Van Horn (57 N. Y. 473), wherein Commissioner Fart,, writing for the court and fortifying his opinion by the citation of many authorities, said: “It is always to be presumed that a law was intended, as is its legitimate office, to furnish a rule of future action to be applied to cases arising *266subsequent to its enactment, A law is never to have retroactive effect, unless its express letter or clearly manifested intention requires that it should have such effect. If. all its language can be satisfied by giving' it prospective operation, it should have such operation only. * * * In Dash v. Van Kleeck [7 Johns. 503] Kent, Oh. J., says that cwe are to presume, out of respect to the lawgiver, that the statute was not meant to operate retrospectively; ’ and that a ‘ statute ought never to - receive such a construction, if it be susceptible of any other. ’ In Jackson v. Van Zandt [12 Johns. 169] Thompson, Ch. J., says: ‘It is a first principle in legislation that all laws are to operate prospectively.’ In Sayre v. Wisner [8 Wend. 662] Savage, Ch. J., says: ‘A statute never ought to have such a construction as to divest a right previously acquired, if it be susceptible of any other, giving it a reasonable object and full operation without such construction.’ The same learned judge says in Hackley v. Sprague [10 Wend. 114]: ‘All statutes are to be construed prospectively and not retrospectively, unless they are otherwise incapable of a reasonable construction; ’ and in The People v. Supervisors of Columbia County [10 Wend. 363], that 1 statutes are not to be construed retrospectively, unless they cannot have the intended operation by any other than a retrospective construction.’ In Palmer v. Conly [4 Denio, 316] Jéwett, J., says: ‘It is a doctrine founded upon general principles of the law that no statute shall be construed to have a retrospective operation without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning unless such a construction is adopted.’ In Berley v. Rampacher [5 Duer, 183] Judge Duer says: ‘Although the words of the statute are so general and broad as, in their literal extent, to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed,’”

This rule of construction has been reaffirmed and applied in many cases, hi People ex rel. Newcomb v. McCall (94 N. Y. 581) the court said: “It is a general rule often reiterated and laid down in reported decisions that laws should be so construed *267as to be prospective and not retrospective in their operations, unless they are specially made applicable to past transactions, and to such as are still pending.” In Matter of Miller (110 N. Y. 216, 223) it was said: “The rule is considered settled in this State that neither original statutes nor amendments have any retroactive force, unless in exceptional cases the Legislature so declare.” Turning again to the section of the Building Code involved in this appeal, I cannot escape the conclusion that to apply it to buildings already erected when the Code was adopted would necessarily be to give it a retroactive effect. In such cases its application would be to make that unlawful which theretofore had been lawful, and to require the partial and perhaps considerable reconstruction of a building which had been erected in accordance with existent laws. May the section be construed so as to act retrospectively ? I think not. It certainly is not made so to apply by specific words, and it would not be rendered meaningless if not so construed, for it would be given full effect if applied to buildings erected after its adoption. The corporation counsel refers us to Health Dept. v. Rector, etc. (145 N. Y. 32) and Tenement House Dept. v. Moeschen (179 id. 325) as instances of cases in which health laws have been applied retroactively. In both of those cases, however, the statutory provisions were expressly made applicable to existing structures, and, therefore, did not fall within the rule above quoted. The learned Appellate Term placed its opinion (72 Misc. Bep. 67) in part upon an excerpt from the opinion of the Court of Appeals in Racine v. Morris (201 N. Y. 240): That case, however, involved no such question as is involved here. The ordinance there discussed was section 95 of the Building Code, providing that all openings into hoist-ways or elevator shafts should be protected with a substantial guard or gate, which “shall be kept closed at all times, except when in actual use.” The defendant had provided sufficient guards or gates, hut his fault lay in leaving one of them unclosed during the night time. That there had been a violation of the ordinance was not seriously questioned, the point of dispute being whether such a violation gave a cause of action to plaintiff. My conclusion is that the order of the Appellate Term should be reversed, the ground of such reversal being *268that the section sought to he enforced cannot he construed so as to act retroactively, and that, unless so construed, it does not apply to buildings erected before the adoption of the Building Code, and which were lawfully constructed buildings when that Code was adopted.

Determination affirmed and judgment absolute ordered for plaintiff, with costs in this court and at the Appellate Term.