The manifest intention of the Legislature, in requiring notice of violation or violations of the act “ To provide for the Begulation and Inspection of Buildings, &c., &c.” (passed April 19th, 1862), was to apprise the owner of the building of the non-compliance or violation of its provisions, to enable him at once to conform thereto. The notice, therefore, should direct his attention to the infringement complained of, with such a degree of certainty and precision as would leave no doubt as to the alteration or addition to be made upon his premises. The plaintiffs must be presumed to know whether the violation consisted of the defendant having a six-story dwelling-house, occupied by eight or more families above the first story, or his having a six-story dwelling-house, built to contain eight or more families above the first story, and not provided with a practical fire-proof fire-escape; or that the defendant had a six-story dwelling-house, either occupied by or built to contain eight or more families above the first story, and not provided with a practical fire-proof fire,-escape. If the notice required by the statute can be satisfied by the suggestion, to the owner that he has “ violated’,’ its provisions, and must remove the violation, a notice would seem to be unnecessary, as he must be presumed to know the law, and the situation and peculiarities of his premises. The reasons assigned by the learned judge at the special term, in my opinion, were abundant, and, to my mind, satisfactorily disposed of all questions as to the sufficiency of the complaint. The case in 2 E. D. Smith, 511, does not conflict with the views of the learned judge at the special term. In that case, “an addition” had been placed by the defendant upon his building, and the court *405held that he could not have been misled, and must have known what was complained of from the notice he received to remove a piazza, &c. The argument of his counsel would seem to have been that because the addition to his building was called by the name of “ a piazza,” therefore the notice did not apprise him of the violation of the act; and the learned court suggest that the defendant might have required the judge to submit the question to the jury, with an instruction that if they believed from the notice and from all the circumstances in the case that the defendant was not apprised, and did not know what he was called upon to remove, that then the plaintiff could not recover, &c. (p. 518.) Judge Denio, in his opinion in favor of affirming the judgment of the Court of Common Pleas, says, “It is argued that the notice was insufficient, because it did not call the thing which the defendant was ordered to remove ‘ a building,’ but denominated it ‘a piazza.’ The object was to give the defendant notice of what he was required to do, and the question was, whether the building was sufficiently described.” Again, he says, “ I am unable to see that it was possible for the defendant to be misled, and I am of opinion that the notice was sufficient.”
Judge Mitchell, concurring in affirming the judgment, says, “ The notice was such that no one could doubt what was intended.”
These opinions confirm the views expressed in this case at the special term.
The order made at the special term should be affirmed.
Robertson, J.Provision may be made in any statute, either expressly or by strong implication, that those who would otherwise come within it may be excused by reason of ignorance of its provisions, either temporarily for a limited time or upon a contingency. This would seem to be eminently just towards owners of a species of property converted into a nuisance by statute. The same end may be accomplished by notifying such owners whenever such property offends the statute, and requiring them to get rid of the offensive quality. Future violators of the law are not entitled to be so leniently dealt with. If such property is a building of a peculiar character, which legally has previously been innoxious, and owned for many *406years, there is no inducement for its owners to study new building laws. The conversion of such a building into a nuisance, subjecting its owner to punishment upon the instant of the passage of the statute, although it might be '■’■summum jus” would be “summa vnjwria” But one who proposes to put up a building in a populous city is bound to make himself acquainted with all the laws in relation to such building, and if he violate any deserves immediate punishment.
The notice required by the 37th section of the statute to the. owners of existing buildings is not only the basis of an action for a penalty, but is made by the 40th section one of the ingredients of an indictable offence, and therefore the same rule for construing any that may he given must he adopted in both cases. To determine the proper characteristics of such notice, its object must be ascertained. Until such notice is given, and the owner of existing buildings fails within the time fixed by it to remove the defect forbidden by statute, he is not made by it guilty of any offence. The existence of that defect may be a violation of the law, but the owner is not chargeable, civilly or criminally, until he fails to do away with it. The object of the notice, therefore, is not simply to notify the owner that he has been guilty of some violation of the law in regard to a certain building, but of the defect which, if unrepaired within a fixed time, renders him a wilful violator of the law. Otherwise, it would he sufficient to inform him of the provisions of the law, and let him discover which one he had violated. The terms of the statute" are, that no penalty shall attach until a notice is given, requiring the removal of such violation. It therefore seems to be necessary to inform the owner of the nature of the violation, and so it was held in the case of the Fire Department a. Buffum (2 E. D. Smith, 511), which was affirmed in the Court of Appeals. The only question raised in that case was one of construction, whether the notice given did so or not. A notice which should specify that the owner had been guilty of some one of the violations mentioned in the statute, even if they were all enumerated, would be no better than a simple notice of violation of the act generally in regard to the building, leaving him to guess which one it was. The case of the future builders of illegal edifices is entirely different. Their offence is complete by the erection, the law is sufficient notice, and no *407subsequent change can relieve them from the penalty and consequences, except the criminal prosecution provided for in section 40.
It seems, however, to be conceded that the notice must point out the defect, or violation as it is termed in the statute; the only difference of opinion seems to be as to what that violation < consists of, it being intended that the want of the fire-escape alone constitutes such a violation. The omission to add something to a building of a particular kind can hardly comprise the whole description of a violation, when a like omission in regard to other buildings is not forbidden. Moreover, the defendant, if liable at all, must be so as one of the third class of persons, designated in the 37th section as persons who fail to comply with such act, who are to forfeit a certain sum for each “ non-compliance,” and not as one of the first or second classes, which consist of the owners of buildings “ on which a violation of such act may be placed or shall exist,” and “ master architects who may be employed or assist therein.” For the nonexistence of a fire-escape can hardly be said to be “ placed or exist on” a dwelling-house, and no one can very well be said to be employed or assist in not putting up one. The penalty was, therefore, not for a violation of, but a non-compliance with the terms of the act. That non-compliance consisted as much in the height, arrangement, or occupation of the building which had no fire-escape, as in the absence of the latter. The removal of the violation, or compliance with the act, could as well be effected by a change in the former as by the addition of the latter. The danger is equally removed, which is what the statute aims at accomplishing, and not at restricting the owner as to the mode in which he shall do it.
If the object of the statute were solely to promote the sale of fire-escapes, undoubtedly it might so be construed; but as the object seems to be to prevent overcrowding lofty buildings with tenants, without a means of escape in case of fire, the same object can be as effectually attained by lowering the buildings and diminishing the number of occupants. It is said that it is only the violation, and not the question of removal, which is at issue, to which I agree for the very reason that the owner is to have his choice as to the mode of removal; but one involves the other. I apprehend a mere notice to the defendant that he *408has been guilty of a violation of the law by not having a fire-escape on a particular building would not be sufficient. If so, as he must be supposed to know there was no fire-escape, a notice that he had seven families in it would be equally sufficient, if it were the fact. That would make the Eire Department the judge, which ingredient in the so-called violation the offender should be called upon to correct. The Legislature, by making the height and internal arrangement or occupation, as well as fire-escapes, part of the standard of safety, enabled parties, by correcting any of such elements, to reduce the danger to that standard.
It is true, the defendant would not be misled by this notice as to his duty if the absence of a fire-escape constituted the whole of the violation; but he clearly would be, if there were any other elements in it whose removal would cause the violation to disappear. Eor that very 'reason, I deem it essential that an entire description of the violation should be given. It certainly would not be a sufficient description of the violation in the complaint, to allege that the defendant had a dwelling-house without a fire-escape, and leave him to prove it was not of the dangerous height or construction, or occupied by the forbidden number of families.
Of course the violation could be removed by levelling the building to the ground. Is not that equally as good a mode under the statute as putting on a fire-escape ? And yet, under the construction contended for, it would not be.
I have not been able to discover in any of the considerations offered any reasons for changing my views at special term. I regret to have been so unfortunate as to have unintentionally expressed any. intimation in giving those views that the statute did not apply to houses built as well as those to be built, in reference both to the character of the building and its occupancy, if that be at all material. My effort was only to point out by what different means a building could be made to comply with the statute, when built to contain six families, and when actually occupied by that number, although not so built, in order to illustrate the necessity of defining the evil to be remedied in the notice. It so happened that the notice in this case did define the violation as a building so built; but it added the alternative of being so occupied, leaving the defendant as much *409in doubt as to what was complained of, as if it had said he violated the provisions of the act containing both offences. (§ 27.)
I, therefore, concur in affirming the judgment.