(78 Misc. Rep. 134.)

DEPARTMENT OF HEALTH OF CITY OF NEW YORK ▼. SULZBERGER & SONS CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) HEALTH (§ 28*)-OFFENSIVE ODORS-PENALTIES.

In an action to recover a penalty for an alleged violation of section 85 of the Sanitary Code, providing that all offensive odors arising from the handling of meat, and treating of or caring for offal, blood, or any other material stored or manufactured, must be cared for by destruction or condensation, and not allowed to escape into the outside air, it is no defense that defendant had installed a good system for taking care of the odors, and that the odors which did escape arose from the fact that one of its pipes was defective, and that as soon as it learned of the defect in the pipe it caused the pipe to be repaired, since the liability is not predicated upon the intentional violation of its provisions.

[Ed. Note. For other cases, see Health, Cent. Dig. §§ 30, 31; Dec. Dig. § 28.*]

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by the Department of Health of the City of New York against the Sulzberger & Sons Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Stroock & Stroock, of New York City (Moses J. Stroock and Charles Levy, both of New York City, of counsel), for appellant.

Archibald R. Watson, of New York City (Herman Stiefel and William J. Millard, both of New York City, of counsel), for respondent.

SEABURY, J. This is an action to recover a penalty for an alleged violation of section 85 of the Sanitary Code. The portion of the Code which it is alleged the defendant violated provides as follows:

"All offensive odors arising from the handling of meat and treating of and caring for offal, blood or any other material stored or manufactured, must be cared for by destruction or condensation, and not allowed to escape into the outside air."

On November 6, 1911, at about 8 a. m., there was an odor in the vicinity of Forty-Fourth street and First avenue, traceable to the defendant's place of business. Appellant contends that it had installed a good system for taking care of the odors, and that the odors which did escape arose from a breakdown in its system, in that one of its pipes was defective, and that as soon as it had knowledge of the defect in the pipe it caused the pipe to be repaired. The defendant claims that, upon this state of facts, it is not liable for the penalty sued for, and it is urged that, as the ordinance in question is penal in its character, the court could not give it such a construction as will cover the present case.

Where a statute or ordinance is plain and unambiguous in its

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

meaning, there is no room for judicial construction, and the function of the court is fully performed where it applies and enforces its provisions. The conceded facts in the present case seem to me to leave no room for doubt that the defendant is liable for the penalty sued for. Its present claim is merely a plea that its violation of the ordinance was not intentional, and that, as soon as it discovered that it was violating the ordinance, it attempted to remedy the defect in its plant. Both of these contentions seem to be true, but both are foreign to the question presented for determination. The ordinance does not predicate liability upon the intentional violation of its provisions, but in mandatory terms prohibits certain acts, which, through some defect in its machinery, the defendant. was guilty of doing. The purpose of the ordinance was to prohibit the evil effects of the defendant's business, which, in a crowded metropolitan district, the law permits to exist only under proper restrictions.

The defendant was guilty of doing the act prohibited by the ordinance in question, and for that reason is liable for the penalty which the ordinance provides shall be imposed in such cases. The courts have no power to suspend the operation of a valid ordinance or statute, because, in the particular case, the person accused did not intentionally violate it, nor is it within the function of the judicial power to suspend the penalties which the legislative power has provided for such violations, because the defendant sought to remedy the condition which it had, in violation of law, allowed to exist. The judgment appealed from should be affirmed, with costs. All

concur.

In re GRADE CROSSING COM'RS OF CITY OF BUFFALO.

(Proceeding No. 102.)

(Supreme Court, Appellate Division, Fourth Department. October 8, 1912.) EMINENT DOMAIN (§ 101*)-DAMAGES-CHANGE OF GRADE-DEPRIVATION OF SWITCHING FACILITIES.

Where the elimination of a grade crossing was effected by depressing the railroad tracks about 25 feet and carrying the street over them on a viaduct, the effect of which was to preclude the possibility of obtaining private switching connections to certain adjoining premises, the loss resulting to the owner therefrom was an element to be considered in determining the damage to his property by the change of grade.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*]

McLennan, P. J., and Foote, J., dissenting.

Appeal from Special Term, Erie County.

In the matter of the application of the Grade Crossing Commissioners of the City of Buffalo to assess damages for the abolition of a grade railroad crossing at Main street in such city. From a report of commissioners of appraisal, and from a final order confirming such

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

report, awarding the owners of certain land, designated as "Parcel 2," $5,000 damages, the commissioners and others appeal. Affirmed. Argued before MCLENNAN, P. J., and SPRING, KRUSE, ROBSON, and FOOTE, JJ.

Irving R. Templeton, of Buffalo, for appellant commissioners. Alfred L. Becker, of Buffalo, for appellant New York Cent. & H. R. R. Co.

Jeremiah J. Hurley, of Buffalo, for appellant city of Buffalo. Charles Diebold, Jr., of Buffalo, for respondent Lucia A. Halbert.

KRUSE, J. In eliminating the grade crossing of the New York Central Belt Line at Main street, in the city of Buffalo, it became necessary to change the grade of the street. The tracks were depressed about 25 feet and a viaduct constructed, carrying the street over the railroad. Commissioners were appointed in this proceeding to ascertain the compensation to be made to the owners of the lands for damages resulting from that improvement. The award for parcel 2 is challenged by this appeal as excessive. That parcel has a frontage of about 180 feet on Main street, extending to a point 212 feet from the railroad right of way. The change of the street grade immediately in front of the premises is slight, but it is contended that the grade crossing improvement as a whole has seriously lessened the value of the premises.

Before the improvement there was a switch track extending to Main street. That has been removed, and, even if relaid in the cut, it would be inaccessible from Main street or from the lands adjoining the railroad. The owner contends that before the changes were made the lands were well adapted for industrial purposes, and that their value has been materially lessened by cutting off the shipping facilities at this point. That view is supported by testimony, and the appraisal commissioners, who were made acquainted with the conditions, seem to have taken the same view, although their award is much less than the amount of the damages fixed by the experts.

In determining the amount of damages under the Grade Crossing Act (Laws 1888, c. 345), where there has been a change of grade in front of adjoining premises, the improvement as a whole must be considered, and if the value of the adjoining premises has been diminished thereby, the owner is entitled to all of the damages resulting therefrom. Matter of Grade Crossing Commissioners, 6 App. Div. 327, 40 N. Y. Supp. 520. It is argued here, as it was in the case of Matter of Grade Crossing Commissioners, 59 App. Div. 498, 69 N. Y. Supp. 152, affirmed 168 N. Y. 659, 61 N. E. 1129, that no damages are recoverable resulting from the depression of the track, eliminating switching facilities; but the award was upheld in that case, although the factory was not in operation and the switches had not been used for some time. It is true that there the premises were immediately adjoining the railroad, while here there is an intervening parcel of land. But, aside from possible private switch connections to these premises, the switch extending to within a few feet of the

premises was taken up, and all switching facilities have been eliminated at this point. Access to the railroad has been cut off, and all facilities for receiving and delivering freight there have been destroyed. If the value of these lands has been lessened by lack of railroad facilities, resulting from the improvement, it would seem that that fact may be properly taken into account in determining the amount of the damages. I think that is in accord with our previous decisions under the Grade Crossing Act of the City of Buffalo, where railroad facilities were cut off or impaired by the improvement and were taken into account in making the award (Matter of Grade Crossing Commissioners, 59 App. Div. 498, 69 N. Y. Supp. 152; Matter of Grade Crossing Commissioners, 111 App. Div. 909, 97 N. Y. Supp. 1135; Matter of Grade Crossing Commissioners, 146 App. Div. 885, 130 N. Y. Supp. 1113, affirmed 203 N. Y. 628, 97 N. E. 1105); and it is in accord with the decisions of the courts of other states as well (N. Y., N. H., etc., R. R. v. Blacker, 178 Mass. 386, 59 N. E. 1020; South Park Commissioners v. Ayer, 237 Ill. 211, 86 N. E. 704).

While the award seems large, I think, in view of the advantage which the commissioners had in determining that question, we would hardly be justified in setting it aside. The order should therefore be affirmed, with costs.

FOOTE, J. (dissenting). I dissent. It appears, from the testimony of the witnesses and from the opinion of the commissioners, that a considerable part of the $5,000 award to the owners of parcel No. 2 is for damage to that parcel because, after the railroad tracks are depressed, it will not be possible to run a private switch track from the railroad across the intervening lands to this property. Respondents' lot does not abut upon the railroad right of way at any point. It has never had a switch track, and could not have one without acquiring from private owners the right to lay the proposed switch track across their lands. The consent of such private owners may never be secured, and there is no power to compel it by condemnation or otherwise. Hence I think the supposed injury to respondents' lot because deprived of the possibility of a private switch track is too remote and speculative to be the basis of an award of damages.

The order appealed from, so far as it confirms the award to respondents in respect of parcel No. 2, should be reversed, and such. award vacated, and the proceeding remitted to the same commissioners to make a new award, allowing no damages for loss of a possible private switch track from the railroad across intervening land to respondents' lot, with separate bills of cost of this appeal to each appellant appearing separately.

MCLENNAN, P. J., concurs.

CHURCH v. WILSON et al.

(Supreme Court, Appellate Division, Fourth Department. October 8, 1912.) 1. PERPETUITIES (§ 4*)-SUSPENSION OF POWER OF ALIENATION-WILLS-CON

STRUCTION.

Where testator gave to his wife the use of his real and personal property with the right to use all the personalty if necessary, and directed his executor on her death to sell the remainder, and invest the proceeds and divide annually the earnings equally between his three children, and declared that, on the death of the children leaving children, their interest to pass to such children on becoming of full age for their own use, meanwhile to receive the net earnings, the wife acquired an estate for life with the right to use the personalty if necessary, and at her death the income must be paid equally to the children for life, and the remainder vested on their death leaving children, in such children, and the postponement of the time of delivery to the grandchildren did not unlawfully suspend the power of alienation, for, after the death of the widow, the estate was in legal effect divided into three shares, and the ownership of each share was suspended only during the lives of the widow and of the children who had the use and income of such share.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]

2. PERPETUITIES (§ 4*)-SUSPENSION OF POWER OF ALIENATION-WILLS-CON

STRUCTION.

Testator gave to his wife for life the use of his real and personal property, and directed his executor on her death to sell the same, and invest the proceeds and divide annually the earnings equally between his three children for life, and declared that, should either child die leaving no child, the interest should go to his remaining children for life, and, should the children leave children, their interest should go to such children on attaining full age for their own use, meanwhile receiving the net earnings. Held, that the provision for the disposition of the estate in case of the death of testator's children leaving no children violated the statute of perpetuities, but, since the contingency might never happen, the other provisions of the will were valid, and, on the happening of the contingency, only the provision violating the statute would be adjudged invalid, and to that extent testator would die intestate.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]

3. PERPETUITIES (§ 6*)-SUSPENSION OF Power of ALIENATION-WILLS-CON

STRUCTION.

Where a will provides for a future disposition of property by making alternative limitations, one or the other of which is to take effect according to the happening of specified alternative contingencies, the mere fact that the limitation over on one contingency is invalid because it may involve unlawful suspension of alienation does not invalidate the other limitation, which, if the contingency on which it becomes operative occurs, cannot occasion such undue suspension, and whither the disposition of the precedent estate is so far separable as to be valid in any event, irrespective of which contingency may occur, the precedent estate may be sustained, and the determination of the validity of the future dispositions may be deferred within the limits of the statutory period until the events occur on which the decision as to them must be based.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-47, 4953, 56; Dec. Dig. § 6.*]

4. WILLS (8 697*)-ACTION TO CONSTRUE

ESTOPPEL.

Where a family agreement for the settlement of a testator's estate was not binding on infant beneficiaries and the executor, the agreement was *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes