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§ 2. It shall be the duty of the officers and men of the Duty of
police. metropolitan police force to enforce all of the ordinances and regulations of said board of health, and to report all violations of the same; where, in any case, the minimum penalty Minimum for a refusal to obey, or for a violation of any order, regulation or ordinance of said board of health, or any law, is not fixed, the amount recovered in such case shall not be less than twenty dollars ; and the judge or justice who presided at a trial where such penalty is claimed shall, on said trial, in writing, fix the amount (not contrary to said provisions) of said penalty to be recovered, and shall direct such amount so fixed to be and it shall be included in the judgment.
$ 3. Said board shall have the same powers in respect of personer persons afflicted with pestilential or infectious diseases, as are pestilengiven by the sixteenth section of the seventy-fourth chapter infectious of the laws of eighteen hundred and sixty-six, or otherwise, diseases. in respect of persons afflicted with contagious disease, and shall have power to provide and pay for the use of proper Places to places to which to remove such persons, as well as to designate Wided and such places; and said board may cause proper care and expenses attendance for such persons so sick or removed, when it shall appear to said board that any such person is so poor as to be unable to procure for himself such care and attendance.
$ 4. That portion of the fourth subdivision of the twenty- Superviseighth section of the seventy-fourth chapter of the laws of West eighteen hundred and sixty-six, which reads as follows, viz. : chester to "And the board of supervisors of the counties of New York, Kings, Richmond and Queens (the expenses of the last-named county to be charged and collected in, and in respect of the property of the towns of Newtown, Flushing and Jamaica), respectively, are empowered and directed annually,” is hereby amended by inserting the word “Westchester,” between the words Kings and Richmond aforesaid, in said act.
$ 5. Service of any order of said board of health shall be Service of deemed sufficient, if made upon a principal person interested orders. in (or upon a principal officer charged with duty in respect of) the business, property, matter or thing, or the nuisance or abuse to which said order relates ; or upon a person, officer or board, or one of the board who may be most interested in or affected by its execution. And if said order relate On agents to any building (or the drainage, sewerage, cleaning, purifi- ment and cation or ventilation thereof, or of any lot or ground on or in Lodging which such building stands) in the cities of New York or Brooklyn, used for or intended to be rented as the residence or lodging place of several persons, or as a tenement house or lodging house, service of such order on the agent of any person or persons for the renting of such building, lot or ground, or for the collecting of the rent thereof (or of the parts thereof to which said order may relate), shall be of the same effect and validity as due service made upon the princi
pense of abating.
law liability reserved.
pal of such agent, and upon the owners, lessees, tenants and occupants of such buildings, or parts thereof, or of the subjectmatter to which such order relates.
6. The word nuisance, as used in this act, shall be held to embrace public nuisances as known at common law, or in equity jurisprudence; and it is further enacted that whatever is dangerous to human life or detrimental to health ; whatever building or erection, or part or cellar thereof, is overcrowded with occupants, or is not provided with adequate ingress or egress to and from the same, or the apartments thereof, or is not sufficiently supported, ventilated, sewered, drained, cleaned or lighted, in reference to their or its intended or actual use; and whatever renders the air or human food or drink, unwholesome, are also severally, in contemplation of this act, nuisances; and all such nuisances are hereby declared illegal; and each and all persons and corporations who created or contributed thereto, or who may support, oontinue or maintain or retain them, or any of them, shall be jointly and severally liable for or toward the expense of the abatement and remedying of the same; but, as between themselves, any such persons and corporations may enforce
contribution or collect expenses, according to any legal or Common equitable relations existing between them ; but nothing herein
contained shall annul or defeat any common law liability or responsibility in respect of nuisances. Provided, however,
that nothing contained in this act or in the act entitled " An Fulton and act to create a metropolitan sanitary district and board of Washing health therein for the preservation of life and health, and to
prevent the spread of disease,”' passed February twenty-sixth, eighteen hundred and sixty-six; nor in the act amending said last-mentioned aet, passed April nineteen, eighteen hundred and sixty-six, shall be construed to confer or as conferring upon the said board or its officers or agents the power or authority to order the removal, tearing down, or injury of any of the stalls or stands around Fulton or Washington markets in the city of New York, which were erected or enlarged to their present size prior to the first day of May, eighteen hundred and sixty-six, at any time before the first day of July, eighteen hundred and sixty-nine ; and if, at such date, the erection of a new market or markets, in the place of said markets, shall have been authorized by law, such power shall
not be exercised at any time prior to the first day of May, Po ventila eighteen hundred and seventy. But it is hereby expressly tion.drain- declared that the said board shall have and possess full and cleanliness complete power with reference to the ventilation, drainage reserved.
and cleanliness of said stands or stalls, and shall have power
to order the removal of all stands or stalls which have been enlarged erected or enlarged upon any street or sidewalk in said city
since the first day of May, eighteen hundred and sixty-six, may be re- or shall hereafter be so erected ; and that the power given to
kets not to be reinoved.
Stalls erected or
since May 1, 1866,
tion of costs.
said boards over obstructions in the streets or on the sidewalks Power by existing laws is hereby expressly re-affirmed, except as structions herein modified; and the said board are hereby directed to Street propose and submit to the next legislature plans and recom- afürmed. mendations for the building of one or two new markets, Plans for whichever they shall deem necessary, to replace the Fulton, ket to be Washington and West Washington markets in said city.
1. Said board of health may institute and maintain, in any Board may court in the metropolitan sanitary district (having jurisdiction suits to in suits where the amount claimed exceeds one thousand dollars), a suit or suits for the abatement or remedying of any of the aforesaid nuisances, either completely or as fully as may be thought necessary by the court. And said board Rights of shall also have, in said district, all common law rights to without abate any nuisance without suit, which can or does in this suit. state belong to any person whatever. And all costs collected Disposiin any such action or proceeding shall be paid over to the treasurer of the board and accounted for by him.
2. To all such suits the provisions of chapters seventy-four Chapters and six hundred and eighty-six of the laws of eighteen hun- laws of 1866 dred and sixty-six, relative to jurisdiction, costs and parties, to apply. shall be applicable; and the courts shall allow the plaintiff, at any proper stage of the case, to amend, by joining other Right to parties defendant; and no suit shall be dismissed or defeated amend. by reason of there being other persons interested therein or defeated concerned in causing, creating or maintaining the nuisance Compartiet complained of in such suit where such person is not a necessary party to the suit.
3. Such suit shall be tried as an issue of law, and without How issue a jury, unless some defendant shall, in his answer, or by notice to be tried. in writing, to be served on the plaintiff's attorney within five days after service of said answer, demand a trial by jury on How jury some question of fact, to be in said answer or notice distinctly stated, and in respect of which a right of trial by jury exists; and if any such demand be so made and served, the case shall, as to all the defendants, be placed on the calendar of jury trial Issues to cases; and when reached for trial, if issues of fact for the jury in writing have not before been settled, the presiding judge may state in writing the issues of fact to be submitted to the jury, or the trial shall proceed upon the material issues of fact made by the pleadings without such written statement of issues; and the judge who presided at the trial (or some judge of the same court, if said judge be unable) shall, on receiving the verdict, or as soon thereafter, and at the same term if possi- Judgment ble, settle and cause to be entered the proper judgment in tiede setsaid suit.
4. If the judgment be that any nuisance may be abated or what remedied, in whole or in part, said judgment shall contain judgment sufficient directions for its proper execution, and the judge How exshall, from the pleadings and from the evidence given at the genserte
demanded or waived.
How lien may be
trial, find and state what proportion of the expense of such execution shall be paid or be borne by each or all of the defendants, jointly or severally; and if, in the opinion of the court, any part of or all of the expense of such execution should be borne by said board of health, or the execution of such judgment should be made by such board, or under its direction, said judgment shall contain the appropriate direction in respect to such last-named payment or execution. And the court may also adjudge the board to pay or advance such proportion of the expenses of executing such judgment
as the judgment shall not direct to be paid by some one or To state on all of the defendants. Said judgment, if against any defenderty it is a ant, shall, on its face, state that it will be a lien on the real
property, corporeal hereditaments of such defendant or de. fendants respectively, to which the said nuisance shall have related, till his or their portion of such expenses of execution are satisfied, or the lien thereof shall be discharged according to law.
5. Any person prejudicially affected by the lien of any such removed. judgment may, on eight days' notice to said board, make a
motion before any judge of the court in which said judgment
was rendered, for an order that the lien of such judgment be Judge may discharged as to all or any specific property set forth; and
if it shall appear to such judge, on the hearing of such When ex- motion, that such eight days' notice of such motion has
been given to the board of health, and that such judgment has been executed and the expenses paid which the lien sought to be discharged was designed to secure; or if a proper
or sufficient undertaking or bond, with sureties, shall be given Or on con- for the payment of such expenses; or if said board of health,
through its attorney or counsel, shall in writing consent to the discharge of the last-named lien, as to any or all property referred to, or as to one or more defendants, then said judge may order said lien discharged of record by the proper officer,
to the extent and as to the person or persons that the order Papers to shall specify; and it shall be so discharged, and such order
and the moving papers shall be filed with the proper clerk, as the judge shall direct.
6. No appeal by any party defendant shall stay the execuproceed- tion of any judgment aforesaid, except to the extent, in ref
erence to the persons, and on the conditions the judge who tried the case (if he can be conveniently applied to, or, if not, some other judge of the same court), shall, on the settlement of the judgment, or on motion, and on four days' notice to
said board of health, and with due reference to the public jungistar interests involved, specially order; and if no such order shall
be made, the judgment shall be executed notwithstanding any appeal, undertaking or security, and without any liability on the part of any person (other than as herein elsewhere provided, in respect to said board), by reason of any damages
order discharge penses paid,
On bond given,
ins, excopt by special order.
to be executed.
or consequences growing out of the execution of such judgment, whether the same be reversed or not. All appeals by which apthe defendant from any judgment in the said abatement suits taken. shall be taken within ten days after notice in writing to the defendant or his attorney, of the entry of the judgment Temportherein, and the judge who tries the case may, in his discretion may be and without security, but only for the period of the said ten days, order a stay as to the execution of the judgment; and Undertakwithin said period of ten days, an undertaking or security on fled. appeal (to stay execution of the judgment, as herein provided) must be filed, the same to be otherwise of the form and obligation as is required in ordinary appeals from judgments, but which shall also be conditioned for the payment What to. of the appellants' adjudged share of the expenses of executing such judgment as the court may have estimated and said judgment may have stated, or (if not estimated in said judgment) as the judge, on application and three days' notice to said board, shall estimate the same in conformity with the judgment, for the purpose of such security on appeal. But Nostay pursuant to any order, or otherwise, the execution of any than ten judgment against the defendants shall not be delayed beyond said ten days, if within that period the proper undertaking or security on appeal, approved by the judge, has not been filed, and the appeal perfected as herein provided ; and the judgment may state the estimated expense that will have to be paid by any party toward executing said judgment. But Board may said board may appeal in any such case, or any case to which without it is a party, within ten days after the entry of any judgment, and without giving any security ; such appeal shall be Effect of effectual, and shall operate as a stay on the judgment, or upon the part thereof in respect to which said board appeals.
7. In any such abatement suit said board may join a cause Claim for of action for any penalty or penalties that may have been penabia incurred by either of the defendants by reason of or in con- joined in nection with the nuisance complained of, or by reason of any action. omission or refusal of any defendant to obey or comply with any order of the board of health touching such alleged nuisance, and have the proper provision in any judgment therefor against one or more of the defendants. No motion for a Motion for new trial in a case made shall be entertained in any such abatement suit, except as a part of and as arising upon the papers upon a regular appeal to the general term of the court, and to be heard therewith.
8. The judgment of the general term, if it shall to any pagment extent direct any change in the judgment appealed from (but at general shall direct, or allow or fail to forbid the judgment in part to contain be executed), shall also contain the requisite specific provisions, so that the judgment as modified may be executed, and the due proportion of the expenses of such execution may be assessed on the defendants respectively, or on said board, as