ner expose to public view, as an advertisement of any show, play or performance, any indecent print, or any picture or cut, tending to represent the doing of a criminal act, or representing indecently the limbs or any part of the human body, or the position of persons in relation to each other, tending to deprave the morals of individuals, or shocking to the sense of decency, or tending to incite the mind to acts of immorality or crime, or to familiarize and accustom the minds of young persons with the

same.

* § 560a. Any person offending against any of the foregoing provisions of this ordinance shall be punished by a fine of not less than $10 nor more than $100, or imprisonment not exceeding ten days; each day such violation shall be willfully maintained or continued shall be deemed to constitute a separate offense and render the offender liable to additional arrest and prosecution. (Ord. app. July 2, 1906.)

XXVIII. The Discharge of Inflammable Gas or Vapor Into Sewers or

Drains.

§ 561. No connection with or opening into any sewer or drain in The City of New York, either public or private, shall be used for the conveyance or discharge, directly or indirectly, into said sewer or drain, of any volatile inflammable liquid, gas or vapor, it being noted that a volatile inflammable liquid is any liquid that will emit an inflammable vapor at a temperature below one hundred and sixty degrees Fahrenheit.

§ 562. Every occupant of any premises which may be connected with a sewer or drain, public or private, who shall use or permit or allow to be used said sewer or drain for such purposes as hereinbefore specified in section 1, and every owner of any premises who shall use, permit or allow the use such sewer or drain for such purposes shall be deemed to have violated the provisions of this ordinance and be guilty of misdemeanor, and shall be punished upon conviction thereof by a fine. of fifty dollars ($50), or imprisonment for thirty (30) days. (Ord. app. July 6, 1906.)

XXIX. Empowering Police Department to Test Certain Boilers and Examine the Operators Thereof.

* § 563. All boilers in vessels now used on the water in and around The City of New York not coming under the jurisdiction of the Marine Department of the United States Government or the Police Department of The City of New York are hereby placed under the jurisdiction of said Police Department, which is hereby authorized and empowered to test said boilers and examine the persons operating the same as to their qualifications as engineers and firemen. Such tests of boilers and the examination of persons operating the same shall be conducted in accordance with such provisions of the Greater New York Charter and Laws of the State of New York as are applicable to boilers operated on land.

XXX. Payment of Jurors in Municipal Court.

§ 564. In pursuance to section 231 of the Municipal Court Act (Laws of 1902, chapter 580), as amended by chapter 431 of the Laws of 1908, it is hereby directed that the sum of two dollars ($2) be allowed to each trial Juror for each day's necessary attendance by him as such Juror, at a term of any Municipal Court of The City of New York, held within The City of New York; provided, however, that no such Juror shall be so paid for attendance on any day on which he shall be excused from service. (Ord. app. July 6, 1908.)

*

XXXI. Children at Moving Picture Shows.

§ 565. Any person, being the owner in whole or in part, or the *Not so numbered in ordinance.

manager, or any employee or attaché, who admits to or allows to remain in any place where moving pictures are shown under a common show license, any child under the age of sixteen years, unless accompanied by his or her parent or relative, or with friends of his or her parent, whether an admission fee is charged or otherwise, is guilty of a violation of the Ordinances of The City of New York.

Any person, not the parent, relative or friend of his or her family, who invites or takes any child under the age of sixteen years into any place specified in this ordinance, unless consent has been given by the parents or proper guardians, shall be guilty of a violation of the Ordinances of The City of New York.

*§ 566. Any violation of the provisions of this ordinance shall be deemed a minor offense, and upon conviction thereof before a City Magistrate, shall be punishable by a fine of not less than $10 nor more than $50, or by imprisonment in the City Prison, or by both; but no such imprisonment, however, shall exceed a term of ten days. (Ord. app. January 29, 1909.)

XXXII. Badges for City Marshals.

*§ 567. The Mayor of The City of New York is hereby authorized to devise and prescribe a style and form of badge to be known and designated as the City Marshals' official badge, a description of which device, form and style he shall file in the office of the City Clerk.

* § 568. Within ten days after such filing in the office of the City Clerk it shall be the duty of each Marshal in The City of New York to provide himself, at his own expense, with such badge, and wear the same at all times while engaged in the discharge of his duties as such, and, further, while so engaged in the performance of his duties to display the same upon demand.

* § 569. Said badges to be of uniform size and style. (Ord. app. December 14, 1909.)

XXXIII. Exhibitions on Sundays.

* § 570. It shall not be lawful to exhibit on the first day of the week, commonly called Sunday, to the public, in any building, garden, grounds, concert room or other room or place within The City of New York, the performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or other dancing, wrestling, boxing with or without gloves, sparring contests, trial of strength, or any part or parts therein, or any circus, equestrian or dramatic performance or exercise, or any performance or exercise of jugglers, acrobats, club performances or rope dancers. Provided, however, that nothing herein contained shall be deemed to prohibit at any such place or places on the first day of the week, commonly called Sunday, sacred or educational vocal or instrumental concerts, lectures, addresses, recitations and singing, provided that such above-mentioned entertainments shall be given in such a manner as not to disturb the public peace, or amount to a serious interruption of the repose and religious liberty of the community. Any person wilfully offending against the provisions of this section, and every person knowingly aiding in such exhibitions, except as herein provided, by advertisements or otherwise, and every owner or lessee of any building, part of a building, grounds, garden or concert room, or other room or place, who shall lease or let out the same for the purpose of any such exhibition or performance, except as herein provided, or assent that the same be used for any such purpose, shall be subject to a penalty of five hundred dollars, which penalty the Corporation Counsel of said City is hereby authorized, *Not so numbered in ordinance.

in the name of The City of New York, to prosecute, sue for and recover; and on the recovery of a judgment for the penalty herein provided for against any manager, proprietor, owner or lessee consenting to or causing or allowing, or letting any part of the building for the purpose of any exhibition or performance, prohibited by this ordinance, the license which shall have been previously obtained by such manager, proprietor, owner or lessee is of itself vacated and annulled. (Ord. app. December 19, 1907.)

GENERAL NOTES.

Evidence, Pleading.-The courts will not take judicial notice of municipal ordinances. They must be specially pleaded and proved. City of N. Y. vs. Knickerbocker Trust Co., 104 App. Div. 223.

Validity.-An ordinance adopted pursuant to authority from the Legislature has the same force within the corporate limits as a statute passed by the Legislature. Village of Carthage vs. Frederick, 122 N. Y. 268; City of Buffalo vs. N. Y. & Lake Erie R. R., 152 N. Y. 276.

Burden of Proof.-An ordinance is presumed to be reasonable. City of N. Y. vs. Hewitt, 91 App. Div. 445. But it is always competent to show that it is unreasonable. Mayor vs. Dry Dock Ry. Co., 133 N. Y. 104; Fire Dept. vs. Gilmour, 149 N. Y. 453; Health Dept. vs. Rector Trinity Church, 145 N. Y. 32; Brooklyn Crosstown R. R. Co. vs. City of Brooklyn, 37 Hun, 413.

Negligence and Nuisance.-The suits brought to recover damages suffered by reason of the violation of ordinances are very numerous. See Thomas on Negligence and Wood on Nuisances. For ready reference the following leading cases are given:

Vaults and Cellars.-Babbage vs. Powers, 130 N. Y. 281; Jorgensen vs. Squires, 144 N. Y. 281; Jennings vs. Van Schaick, 108 N. Y. 530.

Landlord.-Trustees Canandaigua vs. Foster, 156 N. Y. 354; Swords vs. Edgar, 59 N. Y. 28; Ahern vs. Steele, 115 N. Y. 203.

Complying with Conditions of License.-Wolf vs. Kirkpatrick, 101 N. Y. 146; Devine vs. Nat. Wall Paper Co., 95 App. Div. 194.

Coal Hole.- -Clifford vs. Dam, 81 N. Y. 52.

Construction. While ordinances providing penalties are to be strictly construed. Village of Stamford vs. Fisher, 140 N. Y. 187. Still they must be reasonably construed so as to give effect to the intent of the Legislature. O'Keefe vs. Adams, 46 St. Rep. 557; People ex rel. Cumiskey vs. Wurster, 14 App. Div. 556; Mayor, etc., vs. Third Ave. R. R. Co., 16 St. Rep. 122, app. 117 N. Y. 404; Duryee vs. Mayor, 96 N. Y. 477. See McQuillin, Municipal Ordinances.

Defenses.-The fact that other persons are violating an ordinance and are not prosecuted is no defense. City of Buffalo vs. N. Y., Lake Erie & W. R. R., 152 N. Y. 276.

Police Power.-An ordinance to be valid under the police power must be a reasonable exercise of that power. City of N. Y. vs. Wineburgh Adv. Co., 122 App. Div. 748.

Injunctions.-Threatened enforcement of ordinances is no ground for injunction. Fifth Ave. Coach Co. vs. City of N. Y., 126 App. Div. 657; Eden Musee Amusement Co. vs. Bingham, 125 App. Div. 780.

CHAPTER 14.-THE SANITARY CODE.

By Laws 1904, ch. 628, sec. 3, the Sanitary Code in force May 1, 1904, was made a chapter of the ordinances of New York City. All amendments when filed with the City Clerk take effect.

con

The following sections embody substantially the Sanitary Code as adopted by the Board of Health of the Department of Health of The City of New York, formed to chapter XIX, title 1, chapter 378, of the Laws of 1897, and chapter XIX, title 1, chapter 466, of the Laws of 1901, pursuant to section 1172 of said titles, with the amendments and additional provisions, added and published to March 1, 1905." See notes under sec. 1, infra.

DEFINITIONS OF TERMS.

Section 1. The terms " 'Board," ""this Board" and "said Board" whenever used in this Code shall be held to mean the "Board of

Health of the Department of Health of The City of New York;" the word 'Department," whenever used herein, shall be held to mean the Department of Health of The City of New York; the words " person,' owner, tenant," "lessee," occupant, contractor,' party, manager," board," and officer," shall respectively be held to apply to and include, both jointly and severally, each and all owners, tenants, lessees, occupants, contractors, parties in interest, persons, managers, boards, officers and corporations, who may sustain the relations, or may be in like position of any one or more thereof referred to in any ordinance or regulation; every word or phrase anywhere herein defined shall be held to have such meaning whenever used herein; the words " City," "this City,' or 'said City," whenever used herein, shall be held to mean The City of New York; the word regulations shall be held to include 'special regulations (which latter will be from time to time issued, and will contain more detailed provisions than can be herein conveniently set forth); the word "6 permit "shall be construed to mean the permission in writing of this Board, issued according to its by-laws, rules, regulations and Sanitary Code; and every report herein required shall be held to be a report in writing, signed by the person (and indicating his official position) who makes the same; the word "light" or lighted" shall be held to refer to natural, external light; and all words and phrases herein defined shall also include their usual and natural meaning, as well as those herein especially given. (Id., sec. 1.)

or

66

66

66

It is well settled in this and other States that the Legislature has the power to delegate to municipal authorities the right to pass ordinances to promote the public health and safety. Polinsky vs. People, 73 N. Y. 65. Cases cited in Ford vs. N. Y. Central R. R. Co., 33 App. Div., at p. 478. As to the police powers in general, see Matter of Jacobs, 98 N. Y. 98, and Health Dept. vs. Rector, etc., Trinity Church, 145 N. Y. 32.

The power to pass ordinances to regulate the preservation of the public health is vested in the Board of Aldermen by the Revised Charter, L. 1901, ch. 466, sec. 43. Also discussion of constitutional question in Tenement House Dept. of N. Y. City vs. Moeschen, 179 N. Y. 325. Also see Met. Board of Health vs. Heister, 37 N. Y. 661; People ex rel. Cox vs. Special Sessions, 7 Hun, 214; Health Dept. vs. Knoll, 70 N. Y. 580. For powers granted to Department of Health, see chapter XIX, L. 1901, ch. 466.

66

§ 2. The word "street," when used in the Sanitary Code, shall be held to include avenues, public highways, sidewalks, gutters and public alleys; and the words public place shall be held to include parks, piers, docks and wharves, and water and open spaces thereto adjacent, and also public yards, grounds and areas, and all open spaces between buildings and streets, and in view of such streets; the word 99 ashes shall be held to include cinders, coal and everything that usually remains after fires; the word "rubbish " shall be held to include all the loose and decayed material and dirt-like substance that attends use or decay, or which

66

66

accumulates from building, storing or cleaning; the word garbage "shall be held to include swill and every accumulation of both animal and vegetable matter, liquid or otherwise, that attends the preparation, decay and dealing in, or storage of meats, fish, fowls, birds or vegetables; and the word "dirt" shall be held to mean natural soil, earth and stone. (Id., sec. 2.)

66

§ 3. A "tenement house" shall be taken to mean and include every house, building or portion thereof, which is rented, leased, let or hired out to be occupied, or is occupied, as the home or residence of three families or more, living independently of each other, and doing their cooking upon the premises, or by more than two families upon any floor, so living and cooking, but having a common right in the halls, stairways, yards, water closets or privies or some of them. A 'lodging house" shall be taken to mean and include any house or building, or portion thereof, in which persons are harbored or received or lodged for hire for a single night or for less than a week at one time, or any part of which is let for any person to sleep in for any term less than a week. A "cellar" shall be taken to mean and include every basement or lower story of any building or house of which one-half or more of the height from the floor to the ceiling is below the level of the street adjoining. The phrase "boarding house" shall be held to include every building, and every story and portion thereof, which is at any time or usually used, leased or occupied, or intended so to be, by any number of persons exceeding ten, as boarders thereat. The word manufactory shall be held to include every building, and every story and portion thereof, in which any sort of labor or work is done, which calls for the continual or usual presence of several persons during several hours of the day or night, engaged about said work or labor; and the word "saloon" shall be held to include every portion of any building in which the business of selling meals, liquors, drinks or refreshments of any kind shall be conducted, and includes "concert saloons." (Id., sec. 3.)

66

99

4. The term "theatre " shall be held to include the building, rooms and place where any play, concert, opera, circus, trick or jugglery show, gymnastic or other exhibition, masquerade, public dance, drill, lecture, address or other public or frequent gathering or amusement, are, is or may be held, given, performed or take place, and the approach or approaches thereto, and appurtenances thereof. (Id., sec. 4.)

§ 5. The word "physician" shall include every person who practices about the cure of the sick or injured, or who has the charge of, or professionally prescribes for, any person sick, injured or diseased, and the phrase "infectious disease" shall be held to include all diseases of an infectious, contagious or pestilential nature. (Id., sec. 5.)