Maloney v. Hearst Hotels Corporation , 274 N.Y. 106 ( 1937 )

In the subcellar of the Ritz Tower Hotel, two stories below the street, the defendant had maintained for years a general storeroom including a paint room and paint shop wherein were kept or stored large quantities of paints, lacquers, benzine, gasoline, turpentine, alcohol and other highly volatile and explosive liquids. Defendant operated a painting establishment there with eight painters and a foreman. The storeroom lacked efficient ventilation. The quantity of these paints exceeded a hundred gallons.

On August 1, 1932, a fire broke out in the subcellar, which the New York Fire Department was summoned to extinguish. In entering the subcellar from which smoke was being emitted, the plaintiff's intestate, Edward R. Maloney, a fireman, with others was killed by an explosion of these paints or chemical compounds. Whatever was the immediate cause of the accident, it is conceded that it would not have happened if the paints had not been stored in the subcellar or if there had been sufficient and proper equipment and ventilation for such purpose. Sections 200 and 201 of article 15 of chapter 10 of the Code of Ordinances of the City of New York provide as follows:

"§ 200. Permit. No person shall manufacture, store or keep for sale points, varnishes or lacquers or any other substances, mixtures and compounds commonly used for painting, varnishing, staining or other similar purposes, in quantities greater than 20 gallons, without a permit.

"§ 201. Restrictions. No permit for the manufacture, mixing or compounding of paints, varnishes or lacquers shall be issued for any premises * * *.

"(b) Which are occupied as a tenement house, dwelling, hotel, workshop or factory; * * *."

The defendant had failed to observe these ordinances and from this failure arises the liability which has been enforced in this case. We are not called upon at this time to decide whether in the absence of such ordinances or rules and regulations an owner of property owes the same duty to a fireman as he would to an invitee to keep his premises in reasonably safe and secure condition. Meiers v. Koch Brewery (229 N.Y. 10) does not necessarily go this far. We may reserve the question, however, for further consideration as we have in this case a direct violation of ordinances which were enacted for the benefit of firemen as well as guests in the hotels; at least firemen entering into the premises had a right to assume that the law in this particular had been complied with. (Racine v. Morris,201 N.Y. 240; Carlock v. Westchester Lighting Co., 268 N.Y. 345. )

We do not give to these sections of the Code of Ordinances the narrow construction desired by the appellant. They were intended to prevent the mixing or compounding of paints, varnishes or lacquer in premises occupied as hotels such as here in question, and in the quantities and amounts used by the defendant. This does not mean that the ordinary painter may not mix his paints while performing his painting job in a tenement house or hotel, but it seeks the safety of occupants by preventing the storing or keeping of more than twenty gallons of paint without a permit, and the mixing or compounding of paints in connection therewith. The storing required a permit. Conditions of safety might be required before such a permit could be issued. In this case proper ventilation no doubt would have been directed before paints could be kept in a room in the subcellar. No permit, however, could be issued for the mixing of paints in this hotel in connection with keeping large quantities of combustibles not for immediate use.

Section 761 of the Greater New York Charter (Laws of 1901, ch. 466) was not relied upon in the courts below nor any question raised regarding it. Whether this limits recovery by a fireman to cases of willful and culpable negligence or criminal intent and design is not now before us. This court will not pass upon issues not raised below and mentioned for the first time in this court for the purpose of reversing the judgment. (People ex rel.Rutland R.R. Co. v. State Tax Commission, 243 N.Y. 543;Nicholson v. Greeley Square Hotel Co., 227 N.Y. 345; People v. Bresler, 218 N.Y. 567, and Caponigri v. Altieri,165 N.Y. 255.)

The judgment should be affirmed, with costs.

CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.

Judgment affirmed.