Di Santo v. Brooklyn Chair Co. — 140 A.D. 119

Majority

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Elizabeth Di Santo, as Administratrix, etc., of James Di Santo, Deceased, Respondent, v. Brooklyn Chair Company, Appellant, Impleaded with Frank H. Cowperthwait and Frederick S. Cowperthwait, Defendants.

Second Department,

October 7, 1910.

Headnote

Negligence—failure to provide fire escapes on factory — liability of lessee.

One who leases a building three or more stories high to be used as a factory and fails to equip it with fire escapes as required by sections 82 and 88 of chapter 415 of the Laws of 1897, is liable to the estate of an employee who was burned to death owing to the absence of fire escapes. ■

Whatever may be the liability of the lessor of such building, a lessee who uses it for manufacturing is within the purview of the statute as it is his act which makes it a factory.

Appeal by the defendant, the Brooklyn Chair Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of October, 1909, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 10th day of November, 1909, denying the said defendant’s motion for a new trial made upon the minutes.

Frederick Hulse, for the appellant.

Martin T. Manton, for the respondent.

Plaintiff’s intestate, her husband, was concededly burned to. death in a fire which occurred in the factory of the Brooklyn Chair Company in February, 1904. There is no question raised upon this appeal that the deatli of plaintiff’s intestate was due to the fact that there were no proper and adequate fire escapes provided, and the only question to be decided is whether the defendant Brooklyn Chair Company, the lessee of the building, owed a duty to the decedent to have such fire escapes. At the time of the fire sections 82 and 83 of chapter 415 of the Laws of 1897 were in force, and these sections provided (§ 82) that “ Such fire escapes as may be deemed necessary

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by the factory inspector shall be provided on the outside of every factory in this State consisting of three or more stories in height. Each escape shall connect with each floor above the first, and shall be of sufficient strength, well fastened and secured, and shall have landings or balconies not less than six feet in length and three feet in width, guarded by iron railings,” etc., and (§ 83) “ If there is no fire escape, or the fire'escape in use is not approved by the factory inspector, he may, by a written order served upon the owner, proprietor or lessee of any factory, or the agent or superintendent thereof, or either of them, require one or more fire escapes to be provided therefor, at such locations and of such plan and style as shall be specified in such order.”

The owner of the building, who was sued jointly with the Brook, lyn Chair Company, does not appeal from the judgment, but the Brooklyn Chair Company is here contending that as it was not the owner of the building it owed no duty to the plaintiff’s intestate in reference to the maintenance of fire escapes. It is to be observed that the statute does not say who shall erect fire escapes j it merely declares that such fire escapes as may be deemed necessary by the factory inspector “shall be provided on the outside of every factory in this State consisting of three or more stories in height,” and leaves the question as to who shall construct them to the determination of the interested parties in the first instance, subject to the power of the court to construe the provision in its relation to practical questions. The word “ factory ” is a contraction of “ manufactory,” which is defined to be a building or collection of buildings appropriated to the manufacture of goods. (12 Am. & Eng. Ency. of Law [2d ed.], 705.) It is the appropriation of a building to the manufacture of goods which constitutes it a factory, and it is only when a building is thus appropriated, and it is three or more stories in height, that it comes within the provisions of the law. The owner of a building three or more stories in height owes no duty to place fire escapes upon it so long as it is a mere buildingit-is only when it becomes a factory that this duty arises. When a corporation like the Brooklyn Chair Company leases a building from the owner it is merely a building; it becomes a factory only when the lessee places machinery therein and devotes it to the manufacture of goods. It is the lessee who, by his own act, transforms the building into a

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factory, and then the duty arises to provide fire escapes, and whatever we might be disposed to hold in so far as this duty related to the owner of the building, it is clear, we believe, that the lessee, who is in possession for the very purpose of transforming a mere building into a factory, giving rise to the duty, cannot be held to be free from the obligation imposed by the-statute.

The defendant who is here appealing criticises the charge of the learried court, but we are of the opinion that the charge is not open to objection by the defendant; that it was fully as liberal as there was any justification for, and that the verdict of the jury should not be disturbed.

The judgment and order appealed from should be affirmed, with costs.

Present — Hirsohberg, P. J., Woodward, Jerks, Burr and Rich, JJ.

Judgment and order unanimously affirmed, with costs.