The 27th section of the statute relative to “ the regulation and inspection of buildings, the prevention of fires, and preservation of life and property in the city of Hew York,” passed April 19,1862, requires every dwelling-house in such city, built or to be built, either occupied by or built to contain six families, and upwards, above the first story, and forty feet high; or occupied by or built to contain eight fami*198lies, and. upwards, without reference to the height,—to have a stairway leading to an opening in the roof, the rooms on each floor connecting by doors from front to rear, and a practical fire-proof escape, approved of by the Department for the Survey and Inspection of Buildings in Hew York; and every front and rear tenement-house to be connected by an iron bridge. The same section contains a proviso exempting such building if built fire-proof throughout, or two or more dwelling-houses adjoining, of equal height with flat roofs, from its operation.
By the 3Yth section of the same act, the owner of a dwelling-house or other building, upon which “ any violation of” that “ act may be placed or shall exist,” whether owner in fee or lessee of the land, or having a qualified or contingent interest therein, who shall violate the provisions of that act or fail to comply therewith, shall, for every such violation or non-compliance, forfeit the sum of fifty dollars. And any persons who shall violate any provision of that act, or be employed or assist therein, are made liable to a like penalty for not removing such violation within ten days after notice. This section contains also a proviso that no penalty shall attach in cases of violation in existence at its passage until after a notice of ten days requiring the removal of such violation.
By the next (the 38th) section: courts in which suits are instituted to recover penalties are authorized, upon the rendition of a verdict for them, to give judgment therefor, and “for the removal of such violation;” and to enforce such removal and the collection of such penalties by a precept before'the entry of such judgment to the superintendent and inspectors of building, commanding the removal of such violation. Such violation to be removed, and a return to be made, as prescribed in a subsequent section for removing unsafe buildings. That section (§ 43) requires the precept to command the persons to whom it is directed, to repair, secure, take down, or remove, as the case may be, unsafe buildings and walls; and authorizes such persons to employ - the necessary labor and materials for the purpose, for defraying the expense of which other provisions are created in the same act. The next section (§ 49), however, permits owners or parties interested to do what is required in such precept at their own expense on certain terms.
*199There are, therefore, two kinds of violations of law designated in such 27th section: one arises from an omission to have a stairway to the roof, or a proper opening in the latter, to connect all the rooms on every floor, to have a proper fire-escape, or connect by an iron bridge front and rear tenement-houses, in certain dwelling-houses built when of a certain height to accommodate a certain number of families, or without reference to the height a certain other number; the other from allowing any building, when destitute of such contrivances and means of communication, to be occupied by more than a certain number of families. The first kind of violations can only be terminated by altering the building, or adding the missing contrivance or means of egress; the other may be put an end to by merely removing some of the families.
I do not think the objection to the notice in this case, that it defined the violation complained of the house, “ as the building in question having no fire-escape,” and required it to be removed, would have been tenable if the violation complained of had been the existence of the building as being of a certain height and structure without the openings and means of communication and escape required. In such case, the nuisance was the building itself incomplete for the protection of any occupants. The statute everywhere speaks of the removal of the violation, and although not perhaps a very precise mode of expression, it is, as used in this statute, sufficient to designate the removal of the evil, which the owner is required to accomplish. In such case, he knows the modes in which he may do so. But if the evil complained of be the crowding any building not containing the protections required, the party notified can remedy the evil, or remove the violation complained of, by taking away some of the families. In such case, it is not the building, but its use which is the evil. In either case, I think the party notified has a right to be informed of the nature of the evil complained of, in order to know how to proceed to remedy it. The statute evidently did not mean to rely on the general presumption that every citizen knows the laws and whether he has violated them ; its words 'are that the notice shall require the removal of such violation.
In this case, the difficulty is, that while the violation alleged in the complaint is a six-story building, &c., built to contain *200eight families, or more, above the first story, the notice is, “ occupied by, or built to contain eight or more families, &c., and not provided with a fire-escape.” If it were the first only, the defendant could have escaped the penalty by inducing a family to leave. If the second, he would be obliged to alter the building to obtain the fire-escape. If the defendant is to be made liable merely by his knowledge of what the law was, and how he had violated it, no notice was necessary; and if it was to point out the violation, and enable him to take necessary steps to prevent its continuance, it should be definite enough to warn him. In this case, the defendant might have escaped the penalty either by inducing a family to quit the premises, or altering their structure; yet to avoid the possibility of incurring a penalty he would only be safe by doing both.
I think, therefore, the notice was defective in not specifying whether the violation consisted of a building of a certain structure and dimensions, or at least the particular business designated, being without a fire-escape, or of filling a building not having such fire-escape with more than eight families.
Penal laws such as the one in question, so far as the penalty is concerned, are to be strictly construed. It did not intend to punish an innocent or ignorant violation of it, until the party complained of had an opportunity to abate an evil of which he was unconscious. The notice given was preventive to point out the nature of the complaint, so as to guide the party notified in taking the proper means to correct the oversight. A notice which tended to mislead as to the nature of the evil and the means of removing it, was not such as the statute required. And without such notice the defendant was not liable.
The complaint must, therefore, be dismissed on the demurrer, with costs, with, liberty to amend in twenty days on payment of costs.