Langdon v. Fire Department — 17 Wend. 234

Majority

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Langdon vs. The Fire Department of the City of New York.

Headnote

The statute requiring an action for a forfeiture upon a penal statute, to he brought within one ' year after the offence committed, where the benefit and suit is given to any person who shall prosecute for the same, does not apply when the penalty is given to a particular person or corporation; and it was accordingly held in this case, that the fire department of the city of New York were not bound to bring their action within one year for the recovery of penalties for the erection of buildings without fire or party-walls.

When a pile of buildings is erected, separated by division walls, and apparently intended for different tenants, the portions thus separated will, within the meaning of this statute, be considered separate and distinct buildings, although one continuous roof extends over the whole; and the owner who neglects to erect fire-walls, will be subject to as many penalties as there are buildings.

The offence is complete, and the penalty attaches in cases of this kind, when the walls and roofs of the buildings are finished and left without erecting fire or party-walls, although the buildings are not so far completed as to be rendered suitable for occupation.

Error from the superior court of the city of New York. The fire department, in January, 1829, commenced an action against the defendant in the superior court of the city of New York, and claimed to recover

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four penalties of $400 each, for the erection of four buildings within the fire limits of the city without party or fire walls, rising six inches above the roofs of the buildings, contrary to the statute, &c. On the trial it was proved, that in the autumn of 1827, the defendant, as owner, commenced building four hou ses in Hudson street; they were enclosed and roofs put upon them, but no party-walls were erected. The evidence was contradictory as to the time when the buildings were completed ; one witness stated them to have been completed in December, 1827, and another, that they were not completed until March, 1828. It was proved that the buildings were covered by one continued roof, that at one end thereof, there was a fire wall extending above the roof, but that the division walls did not go up higher than the roof. The counsel for the defendant insisted that his client had not erected four buildings; that the whole of the erection being covered by one continued roof constituted but one building, and that therefore he could not be required to put up party-walls. He also insisted that the action could not be sustained, because it was not brought within one year after the offence committed. The presiding judge submitted the question to the jury to determine whether the building erected by the defendant constituted one entire building, or four distinct buildings, (,and instructed them that the plaintiffs were entitled to recover, notwithstanding that the building or buildings might have been completed and finished more than one year before the commencement of the suit. The defendant excepted to the charge of the judge. The jury found for the plaintiffs for $1600 debt, on which judgment was rendered. The defendant sued out a writ of error.

J. M. Bixby, for the plaintiff in error,

insisted that the plaintiffs below were entitled to recover but one penalty of $400; that they had failed to prove themselves a corporation and that the action was barred by the statute of limitations (1 R. L. 186, § 6).

H. Ketchum, for the defendants in error.

By the Court,

The question whether there was only one, or whether there were four distinct buildings, was properly left to the jury. They found against the defendant, and whether that finding was either right or wrong, can not be made a question on a writ of error.

The objection that the plaintiffs did not prove themselves a corporation, was not taken on the trial. Had it been, they would probably have produced the statute, as was done in the case against Kip (10 Wendell, 266). The party can not make questions on a writ of error, which might have been answered if presented at the proper time.

The declaration states all the necessary facts to prove four several of-fences against the provisions of the statute (Laws, 1815, p. 158. §3. 4; Laws, 1819, p. 5, ch. 6). There can be no doubt that the plaintiffs might recover four penalties, if the defendant had in fact erected four distinct buildings, contrary to the statute; and that matter has been found against him by the verdict.

The only remaining objection that is now relied on, is, that the action was barred by the statute of limitations—not having been commenced within one year after the buildings were completed (1 R. L. 186, § 6). The substance of the provision, so far as it bears on this question, is, that actions for any forfeiture upon any penal statute, the benefit and suit whereof is or shall be by the statute limited or given to any person who shall prosecute for the same, shall be brought by any person who may lawfully pursue for the same, within one year next after the offence committed.' By the act of 1815, the penalty for building contrary to that statute, was to be recovered by the treasurer or chamberlain of the city, for the use of the poor thereof; and when recovered, was to be appropriated by the common council, in manner aforesaid. § 4. The act of 1819 provides, that the penalties may be recovered

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hj the fire department of the city if New Yorh, for their own use. This is not the case of a penalty giren to any person who shall prosecute for [237] the same; but the penalty is given to a particular corporation—no one else having a right to sue. Construing the statute as .strictly as was done in Wilcox v. Fitch (20 Johns. R. 472), it is impossible to say that the action was barred. The ground would be more plausible should it be said that this case came within a subsequent clause of the statute, which provides for actions brought by the party aggrieved; but that would not answer the defendant’s purpose, for the limitation under that clause is not one, but three years.

Judgment affirmed.^[1]

* The same question, whether the limitation of one year applies to a case of this kind, arose in the case of The same plaintiffs v. Ross, removed into this court by writ of error from the superior court of N. Y., and decided in May term, 1832. The -superior court in that case held, that the offence was complete and the penalty attached when the walls and roof were finished and coping put on, and no fire or party-walls erected, although the buildings were not rendered fit for occupation until afterwards; but that as the suit was not commenced within a year from that time, it was barred by the statute. This couft concurred in opinion with the superior court, that the penalty attached when the wiills and roof were completed and coping put on ; that the mischief which it was the object of the act to remedy or guard against, would then occur, viz., the danger of the spreading of fire, but differed in opinion as to the application of the statute; holding that the limitation of one year did not-apply, and they* accordingly reversed the judgment of the superior court which had bean rendered in Livor of the defendant.