The defendant, a corporation, appeals from a judgment of the Court of Special Sessions convicting it of a misdemeanor.
The information charges that on November 12, 1915, the defendant was “in charge and control” of a certain factory *757building, and failed to have the said building properly provided with exits and means of escape.
The defendant was charged with a violation of section 79-b of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], added by Laws of 1913, chap. 461, as amd. by Laws of 1914, chaps. 182, 366, and Laws of 1915, chap. 719), and there is no doubt that the building in question was maintained in violation of that section in so far as concerns the exits and means of escape, and the only question in the case is whether, under the provisions of the Labor Law, this defendant is liable, criminally for the failure to observe the requirements of the statute.
Section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349) makes the violation of the above quoted (or any other) provision of the Labor Law a misdemeanor and provides that “Any person who violates or does not comply with any provision of the Labor Law * * * is guilty of a misdemeanor.”
Section 94 of the Labor Law (as amd. by Laws of 1915, chap. 653) provides that “The owner, whether or not he is also one of the occupants, instead of the respective lessees or tenants, shall be responsible for the observance and punishable for' the nonobservance of the following provisions of this article, anything in any lease to the contrary notwithstanding, namely, the provisions of sections * * * seventy-nine-b * * * .”
If this prosecution was against the owner of the property in question there would seem to be no doubt that a conviction would be justified. But it is conceded that this defendant was not the owner, but only an agent of the owner.
That portion of section 94 (as amended) under which it is sought to hold this defendant vicariously liable criminally, provides that “The term ‘owner’ as used in this article shall be construed to mean the owner or owners of the freehold of the premises, or the lessee or joint lessees of the whole thereof, or his, her or their agent in charge of the property. ”
It is sought to uphold the judgment of conviction upon the ground that defendant is the “ agent in charge of the property.” The nature and extent of the defendant’s agency *758appeared quite clearly, and without contradiction. It was employed to collect the rents from the tenants, but had no authority to rent space or to sign leases. The most it could do in that regard was to entertain proposals for leases and to submit such proposals to the owner. Defendant had no authority to order or procure to be made repairs to the building, save very minor ones, costing not over ten or fifteen dollars, whereas, obviously, to supply the deficiencies upon which the prosecution is based would cost a very considerable sum of money. As to such major repairs the utmost defendant could do was to report the necessity therefor to the owner.
It seems to me that to hold, under these circumstances, that the defendant was an “agent in charge of the property” is to strain the language of the statute beyond all reason. An agent “in charge of” property must mean an agent who has some authority and responsibility regarding it, and when an agent is sought to be held criminally liable for having failed to do something regarding the property, it should at least appear that the terms of his agency were such that he had the power to do that for the non-doing of which he is sought to be punished as a criminal. It is no answer to say that he ought to insist upon having such power, for the terms of an agency are, in general, to be determined by the principal. The act is doubtless a highly beneficial one which should be strictly enforced, but not by prosecuting r as violators persons who had no power of compliance, and are, therefore, innocent of wrongdoing.
In my opinion the judgment should be reversed, and the defendant discharged.
Dowling, J., concurred.
Judgment affirmed.