VICTORY FOR FIRE COMMISSIONER ADAMSON OF NEW YORK.
The opinion of the Appellate Division of the Supreme Court in the test case brought by Fire Commissioner Adamson, of New York City, against a property owner to establish the right of the fire department to make owners pay for the extinguishment of fires when they have been wilfully negligent in disobeying fire laws or the orders of the fire department relativie to fire protection measures, is a notable victory for the Commissioner and it has been made the subject of considerable editorial comment in New York newspapers. Chapter 743 of the laws of 1871 appears to be the initial provision for recovery of expenses for putting out fires resulting from wilful or culpable negligence and this is stated to be the first instance since 1871 of which there is any record of a suit being brought. The defendant contended that there must be a criminal intent and the opinion of the Court holds that this is not so and to construe the section that way would be to emasculate it. The defendant also contended that failure to install sprinklers did not start the fire and to this the Court says that the expression “resulting” from negligence does not limit liability to the causing of a fire. The opinion sets forth the law consisely. It says, “The plaintiff relies upon two sections of the Greater New York charter as warrant for the maintenance of this action.” Section 773 provides in part as follows: ‘Any person, persons or corporation, for the violation of or non-compliance with any of the several provisions of the several sections of this Title, where the penalty is not therein specially provided, shall severally forfeit and pay a fine or penalty in the sum of $50 for each and every offense, and shall forfeit and pay the penalties respectively imposed under any of said sections and shall also be severally liable for any costs or expenses that may be incurred by any violation of or non-compliance with, any requirements under said sections and shall also be severally liable for the payment of the further penalty of the sum of Fifty Dollars ($50) and for any violation of, or non-compliance with any regulation, or special direction issued by the said Commissioner,’ etc. Section 761, after providing for the recovery of damages for personal injuries suffered by members of the Fire Department, provides as follows, ‘and any and all persons for any fire resulting from his or their wilful or culpable negligence or criminal intent or design shall, in addition to the present provisions of law for the punishment of persons convicted of arson, be liable in a civil action for the payment of any and all damages to the persons or property, the result of such fire, and also for the payment of all costs and expenses of the said hire Department incurred in and about the use of employees, apparatus and materials in the extinguishment of any fire resulting from such causes, the amount of such costs and expenses to be fixed by the said commissioner and when collected shall be paid into the relict fund of such Department herein created,’ etc. Both sections above quoted are embraced in the same title of the Chapter (Chapter 15, Title III) and are therefore to be read together. Section 773 provides generally that any person for non-compliance with any of the several provisions of that Title shall be liable for any costs and expenses that may be incurred by such non-compliance. Section 775 under which the order for the installation of automatic sprinklers was made, is a part of the same Title III. A failure to comply with an order made under Section 775 is therefore a failure to comply with the provision of Title III and’subjects the offender to the consequences specified in Section 773 (Peo. vs. Kaye, 312 N. Y., 407-415), which includes liability for costs and expenses incurred by reason of non-compliance. Section 761 is more specific and provides when and under what circumstances a person who has been culpably or wilfully negligent and thus caused the fire, may be called upon to pay the damages resulting therefrom, what damages he may be charged with. It is not claimed and we do not hold that the only culpable and wilful negligence which would establish a right of action under the Section last quoted, is the disobedience of an order of the Fire Commissioner. All that it is necessary to hold in the present case with such disobedience as is set forth in the compliant establishes prima facie such culpable and wilful negligence. We think that there can be no doubt that it does.” The Court further says that the Commissioner’s order requiring the installation of automatic sprinklers was presumptively valid and lawful, and noncompliance therewith subjected the owner to the penalties provided for by the charter, and says: “Upon the facts stated in the complaint admitted and not explained we find no difficulty in holding that the defendant’s failure to obey the order of the Fire ‘Commissioner was both culpable and negligent. The defendant argues that the reference in Section 761 to the punishment provided by law for the crime of arson indicates that an action for damages under that Section will not lie unless the person sought to be charged has been guilty of the crime of arson. It is manifest that this could have been the intention of the Legislature. What fixes the civil liability is negligence as well as criminal intent or design. But mere negligence, even if culpable and wilful, is not sufficient to establish the crime of arson, of which an indispensable ingredient is criminal intent. To* construe the section, in this regard, as defendant would have us do, would be to emasculate it. It is further insisted that the defendant cannot be held liable under the statute because it is not alleged that the fire started as a consequence of defendant’s negligence, but merely that It spread for that reason. As we read the section it is not necessary that the fire should be started as a consequence of negligence. The word used in the section is “resulting,” and it is clearly alleged that the spread of the fire and its communication to adjacent buildings resulted from the defendant’s negligence. This we think satisfies the language of the statute and is clearly within its intention. We are therefore of opinion that the complaint sufficiently states a cause of action.”