REAL, ESTATE

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AND







NEW YORK, FEBRUARY 21, 1914





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COURT DECIDES SPRINKLER CONTROVERSY      I





Sustains Fire Commissioner in  the  Kaye  Case—Defines Sprinkler
Requirement and Opens Way to Enforcement of New Factory Laws.





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IN an opinion by Justice Scott, 'which
was unanimously concurred in by his
associates, the Appellate Division of the
First Department has affirmed the con¬
viction of Charles Kaye for misde¬
meanor, for refusing to comply with an
order of the Fire Commissioner requir¬
ing the installation of automatic
sprinklers in the loft-building, 30-34 W.
2Sth  street,   Manhattan.

Mr. Kaye's prosecutiori was a test
case, instituted to determine the Fire
Commissioner's power to demand
sprinkler-protection for the tenants of
typical loft buildings and their hordes
of employees. It proceeded upon the
theory that the Asch Building disaster,
in which 146 persons perished under the
most harrowing circumstances, would
not have happened had the loft in which'
the fire originated been provided with
a sprinkler equipment. The testimony
showed that the Kaye Building is sub¬
stantially a counterpart in height, con¬
struction and equipment, to the struc¬
ture in which the holocaust occurred,
as it then existed. Since the fire, the
Asch Building has been provided with a
sprinkler system. During Mr. Kaye's
trial before the Court of Special Ses¬
sions it was shown that his building was
filled with highly combustible material
which would make a hot, quick-burning
fire, and that, at times, there were as
many as 275 work people in its "zone of
great danger to life," the lofts above
the seventh story.

Contentions of CounseL

Carlisle Norwood, of the Realty
Leagrue, counsel for Mr. Kaye, contend¬
ed that the prosecution was for the vio¬
lation of an ordinance, which it was
not a crime to disregard; and that, in
any event the authority to require the
installation of automatic sprinklers was
not conferred upon the Fire Commis¬
sioner by the ordinance. He also ar¬
gued that section 83b of the Labor Law,
which was enacted by chapter 332 of
the Laws of 1911, had rescinded what¬
ever power the Commissioner ever had
to require sprinklers in the defendant's
building, and, therefore, Mr. Kaye was
justified in disregarding such  an  order.

In their brief for the People, Robert
C. Taylor, Assistant District Attorney,
and A. C. MacNulty, Assistant Corpora¬
tion Counsel, pointed out that section
773 of the Greater New York Charter
made it a misdemeanor to refuse to
comply with a fire-prevention order, and
that Mr. Kaye was accused of this re¬
fusal, and not of a violation of the ordi¬
nance itself. They showed the Court
that it had previously held that auto¬
matic sprinklers were squarely within
the authority of the Fire Commissioner
respecting the installation of fire-extin¬
guishing equipment. Thev also demon¬
strated that the building was not within
the class of structures to which section
83b of the Labor Law relates, in that
more than 200 people were not regularly
employed therein in the Iofts above the
seventh story, and, therefore, the Fire
Commissioner's  discretionary  power  to





order sprinklers in this building was not
impaired. Under the circumstances, coun¬
sel for the prosecution contended that
the defendant was guilty of misde¬
meanor in refusing to comply with the
sprinkler order.

Effect of Labor Law Prevision.

The vital point of the case was
whether or not the enactment of section
83b of the Labor Law, relating to
sprinkler systems in factory buildings,
had operated to repeal, by implication,
the provisions of the ordinance concern¬
ing the same subject. Upon this point
the Court held:

"The question, however, is always one
of intention, and it carries with it its
own limitation that the repeal of a spe¬
cific act by a general one will be implied
only when they are inconsistent, and
where it is apparent from the general
law itself that it was intended to repeal
and supersede all special laws. The
amendment to the Labor Law does not
respond to this test. It provides impera¬
tively that automatic sprinklers must be
installed in buildings answering a certain
description. As to these, no discretion
is left to the Fire Commissioner or
any other administrative authority, ex¬
cept to approve the pattern of sprinklers
to be used. But, the Act goes no
further, and, neither in terms nor by
proper inference, does it provide that
sprinklers shall be required only in build¬
ings of the character described in the
Act. The effect of the Act is simply
this. Prior to its enactment the Fire
Commissioner was given discretion to
require sprinklers or not to require them
in all buildings. By the Act this dis¬
cretion was taken away as to certain
buildings, but was left unimpaired as to
all others. We find no inconsistency
here, and no indication that the Legis¬
lature by prescribing that certain build¬
ings must have sprinklers, meant to de¬
clare that no others should be required
to have them."

Sprinklers   Included   in   Ordinance
Provision.

Concerning the authority of the Fire
Commissioner to order the installation
of sprinklers under the provision of the
ordinance of December, 1911, requiring
the owners of factory buildings to "pro¬
vide such fire hose, fire extinguishers,
buckets, axes, firehooks, fire-doors and
other means of preventing and extin¬
guishing fire as said Fire Commis¬
sioner may direct," the  Court declared:

"The argument that the ordinance
does not authorize the Fire Commis¬
sioner to order the installation of auto¬
matic sprinklers is based on the rule or
doctrine of ejusdum generis. That rule,
of course, is too well established and
known to require reiteration here, but
it is, after all, but a rule of construction
and must yield to the apparent purpose
of the Legislature or other enacting
body. If we read the whole ordinance
of 1911, it will be seen that its obvious
purpose is to provide so far as possible
against_ fires, and especially against
the rapid spread of fires in places where¬
in, owing to the manner of their use
and   occupation,   a   fire,   unless   quickly





subdued would be likely to result in
great damage and loss of life. It would
be unreasonable to attribute to the Leg¬
islature or the Board of Aldermen the
purpose of committing to the Fire Com¬
missioner the discretionary power to re¬
quire slight and often ineffective pre¬
cautions to be adopted, and to deny
him the power to require the adoption
of such other, and much more highly
effective means of control, as might be
from time to time invented or adopted."

Discretion of Fire Commissioner.

Concerning the discretionary powers
of the Fire Commissioner, the Court
stated:

"It is also suggested that the ordi¬
nance, if construed to invest authority
in the Fire Commissioner to order the
installation of automatic sprinklers, is
to that extent invalid because it unreas¬
onably allows him a discretion which
may be used oppressively. That is an
argument which, if sound, should be
directed to the law-making power and
not to the courts. As has been pointed
out, the ordinance, in so far as it affects
the cause at bar, is no new enactment,
but is a mere re-enactment and continu¬
ation of an Act of the Legislature. It
is essential that the authority to com¬
pel proper precautions against fires and
their spread should be confided to some
one, and it is clearly a legislative and
not a judicial function to detemine in
whom such discretion should be vested.
We are, therefore, of the opinion that
the ordinance of 1911 furnishes suflScient
authority for the order which the ap¬
pellant refused to obey."

Disregard of Fire Order a Crime.

The Court, after setting forth that sec¬
tion 77i of the Charter made it a misde¬
meanor to refuse or neglect to comply
with an order of the Fire Commissioner,
and that section 775 of the same statute
empowered him to require the installa¬
tion of fire-extinguishing equioment au¬
thorized by a law or ordinance, sum¬
marized the situation, as follows:

"As soon as this section (775) became
a law, section 773 became applicable to
it and it became a misdemeanor 'to wil¬
fully violate or neglect or refuse to com¬
ply' with any of its provisions 'or any
requirement, order or special direction
duly made thereunder.' Thus (a) the
ordinance of 1911 empowered the Fire
Commissioner to order the installation
of sprinklers, (b) Section 775 of the
Charter conferred upon him legislative
authority to require the installation of
the fire extinguishing equipment author¬
ized by the ordinance, (c) Section 773
made it a misdemeanor to disobey such
an order. We are, therefore, of the
opinion that the defendant's refusal to
comply with the order of the Fire Com¬
missioner was a misdemeanor."

Reasonableness of the Requirement.

Apparently, the only real chance Kaye
had to checkmate the fire authorities
was to show, as a matter of fact, that
in his individual case the sprinkler-order
was arbitrary and oppressive. Com¬
menting on the efforts made in Kaye's
behalf to that end, the Court declared
that in the face of the testimony this
could not be said judicially.