Willy. Mulledy. WILLY v. MULLEDY. City Court of Brooklyn; General Term, December, 1878. FIRE-ESCAPES.-LANDLORD AND TENANT.-NEGLIGENCE. The owner of a house who neglects to comply with the statute requiring him to provide fire-escapes, &c., is liable to any occupant who sustains injury through the neglect.* The reasoning in the case of McAlpin v. Powell, 1 Abb. New Cas. 427, approved, notwithstanding the reversal of the case in 70 N. Y. 126. A general order of the fire commissioners of the city of Brooklyn, directing how fire-escapes should be constructed and put up, under L. 1873, c. 863, § 39, is a sufficient direction under the statute to render the owner liable for damages for an injury arising from neglect to comply with the law. Appeal by plaintiff from a judgment, and from an order denying a new trial. Two actions were brought by Joseph Willy, one as administrator of his wife, Catharine Willy, and the other as administrator of his son Jacob Willy, against * A breach of a statutory duty does not necessarily give a right of action to a person suffering injury in consequence of the act which constitutes such breach. If an act in itself is wrongful or negligent, the fact that it was done in violation of the statute will in many cases be relevant either in establishing its wrongful character, or upon the question of damages. But in an action founded on contract simply, the contract being such that in itself the facts constitute no cause of action apart from the violation of the statute, the fact that the contract was made in the knowing violation of a statute, on the part of the defendant, while the plaintiff was ignorant of the violation, does not sustain the action. Thus, where the owner of sick pigs sent them to market, in violation of the statute forbidding the exposure of such animals for sale, and sold them there, expressly without warranty, "and with all faults;"-Held, that the statutory duty did not raise an implied warranty in spite of the express disavowal of warranty (Ward v. Hobbs, 40 Law Times N. S. 73). VOL. VI.-7 Willy . Mulledy. Patrick Mulledy, for damages for the death of his said wife and son. The plaintiff rented from a real-estate agent the rear rooms, on the top floor of a three-story frame building in the city of Brooklyn, belonging to the defendant. The rooms in front of plaintiff's were occupied by another tenant. At the front of the building there was a scuttle opening from the roof into a closet, situated on the same floor as plaintiff's rooms, but at the other end of the hall or landing. This closet was used by the tenant who occupied the front rooms, as a common store-room, for keeping wood, coal, cooking utensils, &c. On November 5, 1877, at about 11:30 o'clock in the forenoon, a fire, which originated in the lower portion of the premises, occupied as a baker shop, spread very rapidly up the stair-cases in the interior of the house, and filled it with smoke. It was, however, extinguished before destroying the building. One of the witnesses testified that during the fire he saw a woman with a child in her arms open the windows on the third story in the rear; that she seemed distracted, and not to know what she was doing, going from one window to another; he hallooed to her to go down stairs, but she replied: "I can't get down stairs." The smoke was then coming out of the windows in volumes, and she immediately disappeared. After the fire had been subdued, a fireman succeeded in ascending to the top floor, although the two top steps of the stairs, being burnt almost through, broke with him, and there found the dead bodies of plaintiff's wife and child. The fire had not entered the room where the bodies were found, but the only outlet therefrom was on fire, and the door was burning, and the banisters along the top floor were burned away, and the outside of the frame of the scuttle-closet door Willy . Mulledy. was burned. The windows of the room in which the bodies were found were open, and the door leading from the hall into the large room, and the doors leading from the large room into the bed-room were found. open. At the time of the fire the building was occupied by five families, but there was no ladder or stair-case from the scuttle-closet to the roof, nor was there a fire-escape erected upon either the front or rear of the building. At the close of plaintiff's case, the court, on motion of defendant's counsel, directed a verdict for the defendant. Adolph Simis, Jr., for plaintiff, appellant.-If the defendant owed a duty or obligation to the persons injured, he is liable in damages, if the injuries are referable to that breach of duty or obligation, in the absence of contributory negligence (McAlpin v. Powell, 70 N. Y. 126) and such a duty or obligation may arise by express statute (Cow. Dig. Action upon Statute; E. Wharton on Neg. § 443; Braitwaite v. Skinner, 5 M. & W. 327; Clarke v. Brown, 18 Wend. 220; ubi jus ibi remedium, Broom's Maxims; Smith v. Lockwood, 13 Barb. 209; Heeney v. Sprague, 11 R. I. 457; Ewer v. Jones, 2 Salk. 415; Sedgwick on Statutes, 92; Jetter 7. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Duncan v. Thwaites, 3 Barn. & Cres. 556; Myers v. Malcolm, 6 Hill, 295; Rose v. Myles, 4 M. & S. 101; Henly 7. The Mayor, &c., of Lyme Regis, 5 Bing. 91; 3 Barn. & Adolph, 77; Mills v. Hall, 9 Wend. 315; Shearman & R. on Neg. § 4; Thomas v. Winchester, 6 N. Y. 397; Creswell v. Hoghton, 6 Term R. 355; Fish v. Fisher, 2 Johns. Cas. 89). The imposition of a penalty, not for the benefit of the one damnified, is a punishment for the public offense only, and is no bar to an action by one sustaining special injuries (5 Ellis & Black. 848; Handley v. ODL Willy . Mulledy. Moffat, 21 W. R. 231; Couch v. Steel, 3 Ellis & Black. Willy. Mulledy. the defendant of the condition of the building is not necessary to fix his liability (McCarthy v. City of Syracuse, 46 N. Y. 194; Bostwick v. Barlow, 6 W. Digest, 563; Hover o. Barkhoof, 44 N. Y. 113; Wood on Nuisances, § 27, 28; 3 Waite's Actions and Defenses, 449, and cases cited). The defendant had notice of his statutory duty by the following laws: L. 1866, c. 858, §7; L. 1867, c. 908, § 3; L. 1868, c. 632, § 17; L. 1869, c. 591, §§ 2 and 8; L. 1873, c. 863, title 13, § 36. Negligence is a question of fact, and when the inference to be drawn from the proof is not certain, it cannot be decided as a question of law by directing a verdict or nonsuit, but must be submitted to the jury (Thurber v. Harlem B. & F. R. R. Co., 60 N. Y. 326; Shearman and R. on Neg. § 13; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458). Natural instinct of self-preservation would stand in the place of positive evidence that the deceased employed such care as under the circumstances was necessary to effect her escape (Coulter 7. American Merchants' Union Ex. Co., 56 N. Y. 585, and cases cited supra). Thomas E. Pearsall (Morris & Pearsall, attorneys), for defendant, respondent.-The facts being undisputed, it was proper for the court to direct a verdict. (Appleby 7. Astor Fire Ins. Co., 54 N. Y. 253). As the evidence would have warranted the jury to find a verdict for the defendant, the finding of the facts by the court instead of by the jury, is not a ground of 'exception (McCall v. Sun Mutual Ins. Co., 66 N. Y. 517; Marine Bank v. Clements, 31 Id. 43; Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. Dec. 139; Leggett v. Hyde, 58 N. Y. 272 ; Winchell v. Hicks, 18 N. Y. 558; Barnes v. Perine, 2 Kern. 18; Sheldon v. Atlantic Ins. Co., 26 N. Y. 460). The court properly held that the evidence did not disclose any act or default on the part of the defendant amounting to negligence (L. 1847, c. 450; L. 1869, c. |