the law. Parties are defined and penalties are provided for omissions of these parties to follow the law as laid down. It is a serious obligation that devolves upon the owner of property under this law, but it seems to me that the legislature intended to fix beyond all argument where the burden should be placed. The responsibility for jeopardizing human life should be fixed and that without vagueness or uncertainty. To hold that an owner of premises, because he was not at the same time an occupant thereof, is therefore free from responsibility for consequences where he had omitted a clearly prescribed condition, would be placing a premium upon careless landlords and rendering immune those who fail to adopt and provide those things required under the law.

The term "owner" of a tenant factory includes, under section 94, the "agent in charge of the property." Such owner is responsible for the lighting provisions of section 81 which require that stairways leading to workrooms be "properly and adequately" lighted. On complaint of a factory inspector that the stairway leading to a bakery in the basement of a tenement house was not lighted as required by the statute, a conviction of the agent in charge of the property was secured under section 1275 of the Penal Law. The Appellate Division, Second Division, reversed the conviction for lack of evidence. As to the liability of the agent, however, the court said:

(1) PEOPLE V. PULLMAN, 166 App. Div. 99 (Feb. 1915), in part. On the defense the defendant was asked: "Q. You are the agent of these premises No. 201 Fifth Avenue?" He replied, "I am." The owner is a Mrs. Chesebrough, residing out of town. There was evidence that the agent performed acts of control over the property. We think that the evidence was sufficient to show that the defendant was more than a mere renting agent, and that he was the agent in charge of the property. Such an agent is amenable to prosecution under the statute. (People ex rel. Williams v. Eno, 134 App. Div. 527, 532.) The question of intent in the violation of the statute is immaterial. (People v. Werner, 174 N. Y. 132.)

The statute, as we read it, provides, inter alia, for the performance of certain duties in connection with distinct parts of a factory building: (1) That halls and stairs leading to the workrooms shall be properly and adequately lighted, and (2) that a proper and adequate light shall be kept burning in the public hallways near the stairs upon the entrance floor and upon the other floors on every workday in the year, from the time when the building is opened for use in the morning until the time it is closed in the evening, except at times when the influx of natural light shall make artificial light unnecessary.

The information charges that the defendant, as agent, "did fail and neglect to properly and adequately light certain stairs leading to a workroom

in the cellar." As to the provision relating to the stairs leading to the workroom, the pleading is, therefore, sufficient.

But the evidence is insufficient. The testimony was merely a conclusion of a witness that the stairway was not properly or adequately lighted. The question whether it was properly or adequately lighted was for the determination of the court upon evidence of actual conditions, and cannot be left to the conclusion of a witness. There is no such evidence in this record. The judgment of conviction of the Court of Special Sessions should be reversed and a new trial ordered.

Sec

Defendant, an agent in charge of a nine story factory building, was held responsible in Special Sessions, New York City, under section 1275 of the Penal Law, for failure to observe the requirements of section 94 of the Labor Law. That section imposes upon the owner of a building the provision of such means of escape from fire as are prescribed in section 79-b of the Labor Law. tion 94 defines the term "owner" in the following language: "The term 'owner' as used in this article shall be construed to mean the owner or owners of the freehold of the premises, or the lessee or joint lessees of the whole thereof, or his, her or their agent in charge of the property."

The building admittedly was not equipped with the means of escape in case of fire required by section 79-b. The question upon appeal was whether the defendant, which did not own the building but was an agent in charge of it, could be held liable under section 94 for failure to provide fire escapes. It was claimed that the defendant was not the "agent in charge of the property" within the meaning of the statute because it had no authority to execute leases or make such repairs or alterations as would have been necessary to make the building conform with the requirements of section 79-b. The majority of the court in the Appellate Division, First Department, held otherwise in the following opinion:

(2) PEOPLE V. PEASE & ELLIMAN, ING., 173 App. Div. 752 (July 10, 1916), in part.

MCLAUGHLIN, J.: In a large city like New York the owner of a building similar to the one in question rarely, if ever, resides in it, and seldom personally undertakes its management. In the great majority of cases the building is placed in the hands of an agent, to whom applications for renting space are made, and who conducts all dealings with the tenants The owner may be, and frequently is, a non-resident, not subject to the jurisdiction of our courts. But the agent is, necessarily, familiar with the conditions existing in the building and available for complaints in connection therewith. In making the agent in charge of the property responsible for

the observance of the provisions of the Labor Law, therefore, I think that the Legislature had in mind the person who secured the tenants, and to whom complaints respecting the building would naturally be made.

*

It is not the failure to equip the building in the prescribed manner that violates the law, it is the maintenance of a factory in a building not properly equipped, and the violation can be terminated either by altering the building or by discontinuing the factory. Under section 94 both the actual owner and the respective tenants are made responsible if a factory is conducted in a building in violation of section 79-b, and I think it is clear that the agent in charge of the building should likewise be held responsible.

The agent knows whether the building complies with the requirements of section 79-b. He also knows whether the leases permit the tenants to conduct factories in the building. If factories are permitted in the leases in a building not conforming to the law, there is no reason why the agent should not be held responsible. If a tenant conducts a factory without permission to do so in his lease in violation of the law the agent is sure to find it out and it is his duty to see that the violation is stopped. If he continues to

act as agent for the building, knowing that the law is being violated there, he should also be held responsible for the violation. His liability is based upon the existing condition of affairs and not upon the owner's failure to make alterations.

Under this construction the statute is an effective weapon against nonresident owners, for, if agents refuse to take or continue in charge of buildings where such violations exist, the owners must either make the necessary alterations or take charge of the buildings themselves and thus render themselves amenable to prosecution. Under any other construction non-resident owners and their agents could permit violations of the statute to continue with impunity.

From the above opinion Justices Scott and Dowling dissented on the ground that to hold defendant an agent in charge of the property would be to strain the language of the statute beyond

reason.

D. “ WITHIN THEIR RESPECTIVE HOLDINGS" CONSTRUED PEOPLE V. SHEVITZ, 177 App. Div. 565 (April 13, 1917), abstract [aff'd without opinion, 224 N. Y. 627 (Oct. 22, 1918)].

An improperly constructed and screened stairway, physically outside a loft occupied by a factory, but used as a means of ingress and egress, although not mentioned in the lease, is within the tenant's "holdings," as used in the provision making either the landlord or the tenant responsible for the observance, and punishable for the nonobservance, of the provisions of sections 79, 79-a, 79-b, and 79-c, "within their respective holdings."

XIII. EMPLOYERS MUST ENFORCE MINING

RULES

When rules have been promulgated in accordance with section 119, it is obligatory upon the employer to see to it that they are enforced; and where he is derelict in his duty, he will be liable for the consequences of his disobedience. An abstract of the opinion follows:

MAUTSEWICH V. UNITED STATES GYPSUM Co., 217 N. Y. 593 (April 11, 1916), abstract, aff'g 162 App. Div. 907.

In this case it appeared that a mine rule had been promulgated by the commissioner of labor with reference to the safety of employees where blasting had been done. The rule required that the blasting be done by one man and his helper; that no one except the blaster or blasters should be allowed in the room until the blaster or blasters had made a personal examination and pronounced the place safe; that the mine superintendent or other person designated by him should daily examine all mine appliances; and that if a blast missed fire, no one except the blaster should be allowed in the room within 3 hours, unless the blaster made a personal examination and found the place safe. Plaintiff, a driller, went to a part of the mine where he had never worked, and at the direction and order of the foreman, was about to drill holes. There was some conflict in the evidence as to an existing hole. However, the evidence tended to show that the foreman ordered plaintiff to measure the hole with his drill. An explosion followed, injuring him. Disposing of an appeal from a judgment in plaintiff's favor the court said:

"The common-law duty of an employer toward his employee is to provide a reasonably safe place for him to work. That duty includes the duty of reasonable inspection of the place and of the appliances for work.

"The legislature, by directing the commissioner of labor to see that every necessary precaution is taken to insure the safety and health of employees employed in mines and quarries and in the construction of tunnels of the state and to prescribe rules and regulations therefor, intended to supplement the common-law rules relating thereto and thereby further to insure the safety of those employed in such dangerous employments. Statutory directions in regard to machinery and appliances and the manner in which work shall be performed made in the interests of human life and to insure

the safety and health of employees are ordinarily compulsory. It is the duty of employers not only to adopt the rules of the commissioner of labor [now the Industrial Commission] made pursuant to statute, but to enforce them. If the rules of the commissioner of labor quoted, after written notice by him, are to be obeyed, the employer is liable criminally. (Penal Laws, § 1270; Labor Law, § 134.) The employer is also subject in case of an injury resulting from their disobedience to the ordinary consequences arising from negligence. (Scott v. International Paper Co., 204 N. Y. 49; Marino v. Lemaier, 173 N. Y. 530; Racine v. Morris, 201 N. Y. 240; Shields v. Pugh & Co., 122 App. Div. 586; Armenti v. Brooklyn Union Gas Co., 157 App. Div. 276; Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415.)

"Where a duty of inspection rests upon a person or corporation it cannot be delegated so as to relieve such person or corporation from the consequences of a failure to inspect or of an adequate inspection. (Smith v. New York, Chicago & St. L. R. Co., 86 App. Div. 188; affd., 178 N. Y. 635.) “If a defective and dangerous condition of a place of employment or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspection which failed to discover such defect or danger will not relieve an employer from liability arising out of such defect or danger. (Smith v. New York, Chicago & St. L. R. Co., supra.)

"It has become one of the axioms of negligence law that the duty of inspection is the master's duty and one that cannot be delegated so as to relieve the master from responsibility. If a servant performs this duty he is the alter ego of the master and for any negligence in his discharge of that duty the latter is liable. (Koehler v. New York Steam Co., 183 N. Y. 1, and cases eited; Simone v. Kirk, 173 N. Y. 7; Mahoney v. Cayuga Lake Cement Co., 208 N. Y. 164.)"