The defendant, the owner of the building in question, has been out of possession for more than eleven years, and his lessee, under a twenty-one-year lease, was in actual possession when the penalty accrued. All the work ordered by the department of health, including the furnishing of suitable ash and garbage receptacles, related to matters necessarily incident to the use of the premises, and the test, as to liability for a noncompliance, is, who is in control of the property — who suffered the offensive condition to exist? It is quite clear that the lessee or occupant is the offender. It is his use of the premises that may menace the public health, and it is obviously within his power to correct the wrong or violation which he caused.
The furnishing of ash and garbage receptacles cannot be regarded as a part of the permanent equipment or construction of the building. These receptacles are the ordinary portable ash cans, which must be replaced at frequent intervals, and the owner of the fee, out of possession, cannot be required to visit his premises from time to time to inspect articles and utensils which are constantly in use by his lessee. While it is true that the require^ ment touching these receptacles in section 1320 of the charter of the city of New York (Laws 1897, chap. 378) is associated with other provisions relating to the permanent construction and equipment of the building, yet, in section 1312, the requirement as to furnishing “ proper and suitable conveniences and receptacles for receiving garbage and other refuse matters ” is associated with the subjects manifestly incidental to the actual use of the premises,—■ as the prevention of the storage of combustible material, the keeping of animals, or the storage of straw or feed, except by special permit. Moreover, the lessee expressly covenants to make all repairs, and to comply with all orders of the department of health, respecting the premises. There can be no doubt that, as between the owner and the lessee, the latter was bound to obey the order of the board of health requiring the furnishing of these recep*102tacles. If that was the lessee’s duty with respect to his lessor, it also became his duty with respect to third persons. This is the rule universally applied in actions brought by third persons for injuries sustained upon demised premises, and that principle may well be invoked in this case. Indeed, that was the principle upon which the court relied in the ease of Mayor v. Corlies, 2 Sandf. 301, cited with approval in Ditchett v. S. D. & P. M. R. R. Co., 67 N. Y. 425, where, in a case similar to the one before us, the court held that “ where premises have been demised for a term of years, and are in the actual occupation of the tenant, when a penalty is incurred upon such premises for a violation of an ordinance of a municipal corporation, the tenant is liable for the penalty and not the landlord.” The judgment is without evidence to support it, and should be reversed.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Giegebich, J., concurs.