Beman v. Tugnot — 7 N.Y. Super. Ct. 153

Majority

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Ransom Beman v. George Tugnot and others.

Headnote

It is sufficient in a pleading, to aver generally, that a contract sought to be enforced, is in violation of some municipal ordinance or enactment, when such ordinance or enactment is founded upon a statute. It is not necessary to plead the statute specially.

A contract made in violation of a statute, having a merely local or municipal application, is as illegal as if the statute in question had been one of universal application.

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A contract to construct a roof upon a building in the city of New York, is void, and cannot be enfoi-eed, unless the same is to be fire-proof, and equally capable of withstanding the influence of fire, as slate, tin, copper, zinc, or any other fire-proof material, in accordance with the statute passed April 4, 1849. A roof constructed otherwise, is in violation of the statute, and no compensation can be recovered therefor.

(Before Oaklet, Ch. J., Sandford & Campbell, J.J.)

June 20, 28, 1851.

This was an action commenced by the plaintiff, to recover from the defendants, the contract price for the construction of a roof on a house of the defendants, in' the city of New York. The complaint alleged the employment of the plaintiff by the defendants, to construct, and put a roof on a building belonging to them, situated in Twenty-first street; that the work was performed in pursuance of such employment, and claiming to recover therefor, the sum of one hundred and twenty dollars, and sixteen cents. The answer of the defendants admitted the construction of the roof, but stated that the plaintiff undertook to put on a fire-proof roof, and such as had been, or should be approved of by the Fire Department, and in accordance with the fire-laws of the city ; the answer further averred, that the roof constructed by the plaintiff, was not fire-proof, and was not such as had been approved of by the Fire Department; that the same was in direct violation of the fire-laws of the city, and in consequence thereof, had been removed by the defendants, in compliance with a notice to that effect received from the Fire Department, and another substituted in its place.

The reply denied that the plaintiffs undertook or agreed to construct a fire-proof roof, but alleged that the same was fireproof ; the reply also objected to the sufficiency of that part of the answer, which alleged that the same “ was not fire-proof,” and “ was not «such as had been approved of by the Fire Department, and was in direct violation of the fire-laws of the city,” &c., on the ground that these allegations were immaterial, and constituted no valid defence to the action.

The cause came on for trial on the 19th day of April, 1851, before Mr. Justice-, and a jury. On the trial, the counsel for the defendants, after having proved that the roof mentioned in the pleadings, was made of a certain composition,

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offered to prove that the same was not fire-proof, nor' equally capable of withstanding the influence of fire, as slate, tin, iron, copper, zinc, or any other fire-proof material, for the purpose of showing that the contract in question, and the work done thereunder, were in violation of the statute entitled, “An Act to amend an Act for the more effectual prevention of fires in the city of New York, and to amend the acts heretofore passed for that purpose, passed April 4,1849,” and therefore that such contract was void. To the admission of this evidence, the counsel for the plaintiff objected, upon the following grounds1st. That the statute had not been pleaded. 2d. That although the evidence offered,, should be given, the plaintiff would be entitled to recover, the said statute not being a general law, but a local or municipal regulation merely. 3d. That such evidence would not show that the contract in question was illegal or void.

The court admitted the evidence, and the plaintiff's counsel excepted.

The jury rendered a verdict for the defendants.

J. W. Gilbert, for plaintiff.

I. The evidence objected to was not admissible under the pleadings. (1.) The statute was not pleaded, but the city ordinance merely. (1 Bl. Com., N. Y. ed. 1844, 86, n. 21. Code § 163.) (2.) The statute does not require that roofs shall be fire-proof, and there is no averment that the composition of which the roof in question was made, was not equally capable of withstanding fire, as slate, tin, &c., or that it was not approved by the chief engineer. (Laws 1849, § 2, 96,198.)

II. The prohibition of the statute is limited by the classes of persons upon whom penalties are imposed for the violations of it. These are, 1, owners; 2, master builders; 3, master carpenters. The plaintiff was neither. (Johnson v. Hudson, 11 East. 180; Foster v. Taylor, 5 B. & Ald. 898; Cope v. Rowland, 2 M. & W. 149.)

III. A violation of the statute in question consists in the omission to roof or cover buildings in the prescribed way. If a roof, such as the statute prescribes, had been put on over the roof in question, there could be no pretence of any violation of

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the statute. But the plaintiff is not responsible for the omission to put on such roof, and therefore his contract does, not fall within the prohibition ; moreover, the offer of the defendants did not embrace proof of such omission. (Story on Cont. § 621-622.)

Mr. A. F. Smith, for the defendants.

I. The statute was sufficiently pleaded. (Goshen and Sharon Turnpike Co. v. Sears, 7 Conn. 86 -92.)

II. If the plaintiff wished to object that the answer did not sufficiently refer to or recite the statute, he. should have demurred. He neglected to controvert the answer ; his, objection! is now too late. (1 Chitty's Pleadings, 671; Rockfeller v. Donnelly, 8 Cow. R. 655.)

II. If the answer is defective, the “substantial rights of the party are not affected,” and the court will disregard the error. (Code, § 173,176.) The plaintiff was not misled ; he was fully apprised of the defence, and came prepared to meet it.

III. The contract and the work done were illegal, because contrary to and in direct violation of the statute. (Laws 1849, p. 118, 296; Story on Contracts, § 218 and c., § 159, 162 ; Langton v. Hughes, 1 M. and S. 593; Law v. Hodgson, 11 East. 300; Hunt v. Knickerbacker, 5 Johns. 327 : 5 Term Rep. 242.)

Y. The contract and the work done were equally illegal as if the statute in question had been one of universal application throughout the state. (Bell v. Quin, 2 Sand. S. C. Rep. 146.)

By the Court.

The only question in this case arises on the bill of exceptions, as to the admissibility of the evidence offered on the part of the defendants. The court holds with the defendants, and sustains the positions assumed by their counsel in his points.

We consider the contract illegal, as being in violation of the statute.

Judgment for the defendants.

Cases cited

Hunt v. Knickerbacker 5 Johns. 327 N.Y. Sup. Ct. p. 156