Opinion
May 24, 1918.
Alexander C. MacNulty, for the relator.
William J. Millard [ Lamar Hardy, Corporation Counsel, Terence Farley and F.E.V. Dunn with him on the brief], for the respondents.
The commissioner's powers to order automatic sprinklers are defined in People v. Kaye ( 212 N.Y. 407). In that case the order which defendant had violated applied to property used for manufacturing purposes. Section 20 of article 2 of chapter 12 of the Code of Ordinances, which superseded section 762 of the Greater New York charter (Laws of 1897, chap. 378; Laws of 1901, chap. 466, "Section Three"), has a general direction that "the owners and proprietors of all manufactories, hotels, * * * warehouses, stores and offices, theatres and music halls, * * * shall provide such means of communicating alarms of fire, accident or danger to the police and fire departments, respectively, as the fire commissioner or the police commissioner may prescribe, and shall also provide such fire hose, fire extinguishers, buckets, axes, fire hooks, fire doors and other means of preventing and extinguishing fires as the fire commissioner may direct." (See Cosby's Code Ord. [Anno. 1915] p. 222; Id. [Anno. 1917] p. 335.)
Relator's counsel urges that section 580 of article 28 of chapter 5 of the Code of Ordinances, being the Building Code, adopted December 7, 1915 (which was re-enacted in Code of Ordinances approved June 20, 1916) prevented the fire commissioner from issuing the present order, because of an omission to make and publish rules governing sprinkler installations. (See Cosby's Code Ord. [Anno. 1915] p. 127; Id. [Anno. 1917] p. 153.) But we agree with NEWBURGER, J., that such section is not inconsistent with section 20 of article 2 of chapter 12; that the provision for rules being issued did not add to, or take away from, the general powers of the fire commissioner; but was a mere detail in carrying out such powers. ( People ex rel. Adamson v. Miller, 100 Misc. Rep. 302.)
Such an order depends on the discretion and judgment of the fire commissioner, after having an investigation made and the fact determined whether, in view of the particular hazards of the location and the risks to the persons there exposed, further protection is needed. The matters that accompany the return to this writ, citing from public reports in the Department of Labor, abundantly confirm the commissioner's judgment, in directing such protection by automatic sprinklers. As was said by SEABURY, J.: "The necessity for the use of such equipment depends upon the circumstances of each particular case, and in the first instance it is the duty of the fire commissioner to determine whether or not such a necessity exists. If such a necessity does in fact exist and the order requiring the installation of fire preventive equipment is in any given case a reasonable one, it will be upheld." ( Waldo v. Christman, 72 Misc. Rep. 349, 355.)
After the municipal official, clothed with this authority to protect life and property, has acted, his order cannot be held for naught on the mere suggestion of some so-called expert that by fireproof partitions in certain places, and enlarged exits, the cheaper substitutes thus proposed had rendered the official order for sprinklers unreasonable and invalid.
It was further contended that this court cannot take judicial notice of city ordinances. But by Laws of 1917, chapter 382, amending the Greater New York charter, section 1556, "All courts in the city shall take judicial notice of city ordinances." This amendment took effect May 5, 1917, and was controlling upon this court upon the hearing upon this writ.
The determination of the respondents Waldron and Helmle, being a majority of the three surveyors called under relator's demand under section 777a of the charter, confirming an order of the fire commissioner dated August 15, 1916, requiring relator to install in its department store a separate and distinct system of automatic sprinklers for the purpose of fire protection, should be confirmed, and the writ of certiorari dismissed, with fifty dollars costs and disbursements.
JENKS, P.J., THOMAS, RICH, PUTNAM and BLACKMAR, JJ., concurred.
Determination of surveyors confirming fire commissioner's order of August 15, 1916; confirmed, and writ of certiorari dismissed, with fifty dollars costs and disbursements.