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All communications relating to the publications of the Department of Health should be addressed to the Commissioner of Health, 149 Centre Street, New York

Entered as second class matter May 7, 1013, at the post office at New York, N. Y.,
under the Act of August 24, 1912.

NEW SERIES. VOL. II.

JUNE 21, 1913.

THE NEW BAKERY LAW.

No. 25

The control over bakeries in New York City has been unsatisfactory in the past owing to the fact that both the State Labor Department and the Department of Health have had jurisdiction. It was formerly the custom for the Department of Health in most cases to refer complaints to the State Labor Department. On May 9, 1913, an act to amend the Labor Law in relation to bakeries, which had been passed by the Legislature, was approved by the Governor and immediately became a law. The bill. which was introduced by the New York State Factory Investigating Commission and was amended after public hearing to embody certain suggestions of Commissioner Lederle, providing that in every city of the first class the Health Department of such city shall have exclusive jurisdiction to enforce the provisions of the law. Responsibility is thus fully lodged in the Department of Health, and, with this advantage. it is believed that the situation can be coped with and a radical improvement of the sanitary conditions in the great number of small bakeries, many of them in cellars. can be brought about. The department is making special efforts to control and improve conditions under which food is generally produced and sold in New York, and the law recently passed should be of invaluable assistance in one of the most important lines of work connected with this general campaign,

Provisions of the Law.

The law in question, which takes the form of an amendment to article 8 of chapter 36 of the Laws of 1999, is too lengthy to be quoted here in full. In general, it states specifically certain requirements for the proper sanitary maintenance of bakeries. No person who has any communicable disease shall work or be permitted to work in a bakery. Whenever required by a medical inspector, any person employed in a bakery shall submit to a physical examination by such inspector. No person refusing to submit to such an examination shall work or be permitted to work in any bakery. No person, firm or corporation, shall establish, maintain or operate a bakery without obtaining a sanitary certificate from the Department of Health, and such certificate may he revoked at any time by the Commissioner of Health, if the health of the community or of the employees of the bakery require such action. Applications for sanitary certificates for existing bakeries shall be made within four months from May 9, 1913, on which date the act took effect, and no such bakery shall be conducted or operated without a sanitary certificate from the Department of Health after the first day of January, 1914. In the case of bakeries hereafter established, the application for a sanitary certificate shall be made within ten days after such bakery shall

commence business, and no such bakery shall be conducted or operated without a sanitary certificate for more than thirty days after commencing business.

Cellar Bakeries.

"No bakery shall hereafter be located in a cellar, and a sanitary certificate shall not be issued for any bakery so located unless such bakery shall be at least 10 feet in height, measured from the surface of the finished floor to the underside of the ceiling, and if the bakery is located, or intended to be located, entirely in the front part of the building, the ceiling of the bakery shall be in every part at least 4 feet 6 inches above the curb level of the street in front of the building, or if such bakery is located or intended to be located entirely in the rear part of the building or to extend from the front to the rear, the ceiling of the bakery shall be not less than 1 foot above the curb level of the street in front of the building, and the bakery shall open upon a yard or courts, which shall extend at least 6 inches below the floor level of the bakery, nor unless proper and adequate provision shall be made for the lighting and ventilation of such bakery and for the proper construction of the floor, walls and ceiling thereof, and plans and specifications for the construction and establishment of such bakery, in such form and covering such matters as the Commissioner of Health may require, shall have been first submitted to and approved by the Commissioner of Health. This prohibition shall not apply to a cellar used and operated as a bakery at any time within one year prior to the date of the passage of this act, provided that satisfactory proof of its use as a bakery as herein specified be furnished to the Commissioner of Health in such form as he may require within six months after this act shall take effect. Upon receipt of such proof the Commissioner of Health shall issue to the owner of the building, in which such cellar is located, a certificate of exemption."

A DECISION ON LODGING HOUSES.

By a decision rendered in May, 1913, and handed down by Mr. Justice A. Oppenheimer, the right of the Department of Health to the recovery of penalty for failure to file a lodging house notice was maintained as was also the fact that the term "lodging house," as defined in section 1305 of the Greater New York Charter, includes hotels. The action was begun by the plaintiff, the Department of Health of The City of New York, against the defendant, Robert Kommel, pursuant to the provisions of section 1305 and 1312, respectively, of the Greater New York Charter, to recover of the defendant a penalty, of not less than $10 and not more than $50, for violating the provisions of section 1312 of the Greater New York Charter, in having failed, as owner and person in control of a lodging house located at No. 223 Park row, in the Borough of Manhattan, City of New York, to file with the Department of Health a notice containing his name and address and a description of the said building, by street number or otherwise, as prescribed by said section. The opinion of Mr. Justice Oppenheimer is quoted herewith:

Section 1305 of the Greater New York Charter provides in part as follows:

"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 one week at one time, or any part of which is let for any person to sleep in for any term less than a week."

Section 1312 of the Greater New York Charter provides in part as follows:

"Every owner of a lodging house and every person having control of a lodging house shall file in the Department of Health a notice containing his name and address and also a description of the property, by street number, or otherwise, as the case may be, in such manner as will enable the Department of Health easily to find the same. In case of a transfer of any lodging house, it shall be the duty of the grantor and grantee of said lodging house to file in the Department of Health a notice of such transfer, stating the name of the new owner within thirty days of such transfer. In case of the devolution of said property by will, it shall be the duty of the executor and of the devisee, if more than twenty-one years of age, and in case of a devolution of such property by inheritance without a will, it shall be the duty of the heirs, or in case all of the heirs are under age, it shall be the duty of the guardian of such heirs, and in case said heirs have no guardians, it shall be the duty of the administrator of the deceased owner of such property to file in said department a notice stating the death of the deceased owner and the names of those who have succeeded in his interest in said property within thirty days after the death of said decedent in case he died intestate, and within thirty days after the probate of his will if he died testate. A failure to file such notice shall make said property and the owners thereof liable to a penalty

of not less than $10 nor more than $50. Said penalty may be recovered in an action brought by the Health department, as provided for in this act

In the brief of the defendant's counsel much is stated as to what constitutes a hotel and what a lodging house. The able counsel traces the history of the term "hotel" back to its origin, but it was conceded at the trial that the defendant is the owner and proprietor of a hotel at said number, 223 Park row, known as the Kingston Hotel, and that he has not filed with the Department of Health the notice just alluded to. A certificate was granted to the defendant permitting traffic in liquors in connection with his keeping of a hotel in said building. The defendant claims that he need not file a notice under section 1305, because the defendant's establishment is a hotel, and that the statute applies only to lodging houses.

The Corporation Counsel, on behalf of the Department of Health, claims that all hotels come within the purview of the provision of section 1305.

At the threshold of this opinion it is essential to ascertain what is meant by a lodging house. The Standard Dictionary says that a lodging house is "a place other than a hotel where lodgings are let." Dictionary definitions, however, are not conclusive (see Grant vs. N. Y. Herald, 133 App. Div., 733).

Said section 1305 undertakes to define what is a lodging house, namely: “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, of 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."

No definition of a hotel has been called to my attention in the Charter which differentiates a hotel from a lodging house. There is no definition in the Charter of The City of New York inconsistent with holding that a hotel is included in the term "lodging house," as defined by this section above alluded to.

That there was any definition whatever of a lodging house in the statute is important in the consideration of this case. I believe that much stress ought to be placed upon the first part of this statutory definition, namely:

"A lodging house shall be taken to mean and include any house or building, etc." The word "include" is very significant. It seems to me that what the Legislature intended was to include all buildings of every kind and description in which "persons are harbored or received or lodged, etc." The Legislature having made it obligatory to file the said notice with the Department of Health, I may indulge in the presumption that the Legislature intended, through the instrumentality of such filing of such notice with the Department of Health, of all buildings in the City in which lodgers are harbored, that this department may, if necessary, take cognizance and supervision of any such buildings for the purpose of preventing the spread of diseases. The meaning of a statute must be taken in the sense which best harmonizes with the subject matter in reference to which it is used (148 App. Div., 720).

It is difficult to draw the line of demarcation between lodging houses and hotels so far as the beneficent result is concerned which the Legislature attempted to accomplish by means of sections 1305 and 1312. The logical extension of the argument, as expressed in this opinion, would naturally include furnished room houses as well as boarding houses, or any other buildings in which lodgings are commercialized. In a consideration of the terms of the statute, we must not lose sight of the fact that the object of the Legislature was to protect the lives of the people of this large and congested cosmopolitan city, in which contagious diseases are easily communicated from one to another. It is therefore proper to adopt the language of the court in the case of The People vs. Abraham, in the Sixteenth Appellate Division, in which it is substantially stated, if a statute is made for the public good, although it be a penal one, it should receive an equitable construction. In one case, in laying down the rule for the construction of contracts, it was said: "The language of the promisor is to be interpreted in the sense in which he had reason to suppose it was understood by the promise" (White vs. Hoyt, 73 N. Y., 505-511). I feel inclined to paraphrase this language of the court, and say the language of the statute under consideration is to be construed in the sense in which the Legislature had reason to suppose it would be understood by the people.

"A statute being remedial, should be liberally construed to accomplish the good intended" (58 Hun. 310; 148 App. Div., 860; 98 Ñ. Y. at 558). I wish to emphasize. however, that I find the language of section 1305 is not ambiguous, and, although it is penal, a strict construction of the words "a lodging house, shall be taken to mean and include any house or building * * * in which persons are lodged, etc.," means all establishments such as I have already mentioned, including the one maintained by the defendant.

I therefore render judgment against the defendant on the merits for the minimum amount of the penalty, namely, $10, and grant five days' stay.

Boroughs.

VITAL STATISTICS

Summary for Week Ending Saturday, 12 M., June 21, 1913.

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Corrected according to borough of residence.

↑ The presence of several large institutions, the great majority of whose inmates are non-residents of the city, increases considerably the death-rate of this Borough. Deaths by Principal Causes, According to Locality and Age.

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Mar. Mar. Apr. Apr. Apr. Apr. May May May May May June June June

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Week Ending.

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Total...... 2,634 2,674 2,508 2,671 2,738 2,837 2,874 3.029 2,769 2,904 2.517 2,817 2,344 2,333

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