People ex rel. Board of Health v. Fries — 109 A.D. 358

Majority

p. 358

The People of the State of New York ex rel. The Board of Health of the Village of Friendship, Respondent, v. George W. Fries, Appellant.

Fourth Department,

November, 1905.

Headnote

Public Health Law — order of board of health not enforcible by mandamus.

Section 31 of the Public Health Law, authorizing mandamus to enforce “ The performance of any duty or the doing of any act enjoined, prescribed or . required by this article,” refers 'only to the- duties of boards and officers created by the-article .and the writ does not lie against a private person to compel compliance with an order of a board of health. Compliance with such order should’ be effected under section 26 of said act, allowing a bbard of health.to enter and abate a nuisance.

McLennan, P. J., dissented on opinion below. •

p. 359

Appeal by the defendant, George W. Fries, from an interlocutory judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Allegany on the 14th day of November, 1904, upon the decision of the court, rendered after a trial at the Allegany Special Term, overruling the defendant’s demurrer to an alternative writ of mandamus theretofore issued on behalf of the relator.

Elliott & Bolles, for the appellant.

James T. Ward, for the respondent.

The interlocutory judgment should be reversed, with costs, and judgment ordered sustaining the demurrer, with costs.

The village of Friendship has a board of health, and the board is controlled by the provisions of chapter 383 of the Laws of 1903, amending the Public Health Law (Laws of 1893, chap. 661). Section 25 of the act as thus amended provides, among other things: “Every such local board shall order the suppression and removal of all nuisances and conditions detrimental to life and health found to exist within the municipality,” and section 26 of said statute, as thus amended, provides, among other things: “ If the owner or occupant of any premises whereon any nuisance or condition deemed to be detrimental to the public health exist ‘ * * * fails to comply with any order or regulation of any such local board for the suppression and removal of any such nuisance or other matter, * . * * uch boards or their servants or employes may enter upon the premises to which such order or regulation relates and suppress or remove such nuisance or other matter,” etc.

And' section 31 thereof, as thus amended,.provides: “The performance of any duty or the doing of any act enjoined, prescribed or required by this article^[1] may be enforced by mandamus at the instance of the State Department of Health, or its president or secretary, or of the local board of health, Or of any citizen of full age resident of the municipality where the duty should be performed or the act done.”

* Public Health Law, art. 3, as amd.— [Rep.

p. 360

The question involved in this appeal is whether under this section 31 .mandamus is a proper remedy to compel an ownér or occupant of premises, whereon a nuisance or condition detrimental to the public health exists, and who has been ordered so to do by the board of health, to abate -or remove such nuisance or condition; whether the exclusive remedy to compel such abatement or removal is found in section 26 of the act (as amd. supra). .

It is clear that the only authority for this use of a mandamus,, if any, must be found in said section 31. It could not be used for this purpose prior to. the passage of this section: Hnder it the writ may issue to enforce “the doing of any act enjoined, prescribed or required by this article;” Such acts as the one here sought to be. enforced aré nowhere in the act “ enjoined, prescribed.or required” to be done by the individuals. ' ' "

The article deals with the boards and officers created by the article.and prescribes their jurisdiction and duties.

’The act here sought to be enforced is one' ordei'éd and directed to be done, not. by the statute, but by the board of health.

We think there was no intention by this section 31 to provide a cumulative remedy for the abatement and removal of nuisances in municipalities. The. writ provided for was to' compel boards1 and officers created by the act to do their duty, to :act. It was not intended to be used against individuals not officials under the act!

There is a complete remedy provided under section 26 of the act (as amd. supra) for this purpose, and the courts should not give a construction of section, 31 of the statute .(as amd. supra) not indicated by the language of that section and clearly not intended by the Legislature.

All concurred, except McLennan, P. J., who dissented on opinion of Childs, J., delivered at Special Term.

Interlocutory judgment reversed, with costs, áñd demurrer 'sustained, with costs.