George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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by a permit for such burial or removal, duly issued by the local board of health
having jurisdiction where the death occurred, and any officer or board that shall
neglect or refuse to register and preserve the records and forward the certificates
to the State bureau of vital statistics as above required, shall be deemed guilty of
a misdemeanor, and may be prosecuted in any court of competent jurisdiction.

As ameuded by chap. 309, Lawa of 1888.

Publication of Regulations, etc.. Necessary to Successful Operation of This Act.

6. To make and from time to time to publish, in such manner as to secure early
and full publicity thereto, all such orders and regulations as they shall think nee.
essary and proper for the preservation of life and health and the successful opera-
tion of this law; and to make, without publication thereof, such orders and regu-
lations in special or individual cases, not of general application, as they may see
fit concerning the suppression and removal of nuisances, and concerning all other
matters in their judgment detrimental to public health, and to serve copies thereof
upon any occupant or occupants and the owner or owners of any premises whereon
any such nuisances or other matters aforesaid shall exist, or to post the same in
some conspicuous place on such premises.

Warrants of Arrest.

7. To issue warrants to any constable or police of their respective cities, villages
and towns, to apprehend and remove such persons as cannot otherwise be subject
to the orders and regulations by them adopted; and whenever it shall be neces-
sary to do so, to issue their warrant to the sheriff of their respective counties to
bring to their aid the power of the county; all which warrants shall be forth
with executed by the officers to whom they shall be' directed, who shall possess
the like powers and be subject to the like duties in the execution thereof, as if
the same had been duly issued out of any court of record in this State.



The Supeevisok. 121

Employing Subordinates.

8. To employ all such persons as shall be necessary to enable them to carry into
effect the orders and regulations they shall have adopted and the powers vested
in them by this act, and to fix their compensation.

Penalties, and Action for.

9. To impose penalties for the violation of, or non-compliance with their orders
and regulations, and to maintain actions in any court of competent jurisdiction to
collect such penalties, not exceeding one hundred dollars in any one case, or to
restrain by Injunction such violations, or otherwise to enforce such orders and
regulations.

10. Boards of health organized under this act shall have the same power to
issue subpoenas, to compel the attendance of witnesses and to administer to wit-
nesses oaths and compel them to testify under oath, as is now given or which
may hereafter be given by law to justices of the peace in this State. The State
board of health shall have the same*power to issue subpoenas, to compel the at-
tendance of witnesses and to administer oaths to witnesses and to compel them to
testify under oath, as is now given or may hereafter be given to the Supreme
Court of this State, but witnesses may be compelled to attend and give testimony
before said State board of health within the county where they reside or have a
place of business without the payment of any fees therefor. No subpoena shall
be served upon any person who, at the time of such service, was outside the juris-
diction of the board of health issuing the same, and no witness shall be questioned
nor be compelled to testify upon matters not related to the interest of the public
health. And such boards of health shall have, in their discretion, power to des-
ignate by resolution one of the members thereof to issue and sign such subpoenas.

Added by chap. 146, Laws of 1888.

Willful Refusal to Obey Order, Misdemeanor, Fine and Imprisonment. — Bnter on
Premises and Suppress or Remove Matter Detrimental to Public JBealth. — Ex-
pense a Charge on Property. — Judgment a Lien Priority. — How Lien Satisfied.

§ 4. Every person who shall willfully violate or refuse to obey any order or
regulation made and published by the board of health of any city, village or town
in this State, or any order made and served, or posted as aforesaid, shall be deemed
guilty of a misdemeanor, and on conviction thereof shall be subject to fine or im-
prisonment, or both, in the discretion of the court, such fine not to exceed one
thousand dollars nor such imprisonment six months. And in any case of non-com-
pliance with any order or regulation which shall have been served or posted, as
provided in subdivision six of section three of this act, the said board or its ser-
vants or employees may lawfully enter upon any premises to which such order
or regulation relates, and suppress or remove the nuisance or other matters in the
judgment of said board detrimental to the public health mentioned in such order
or regulation, and any other nuisance or matter of the description aforesaid found
there existing; and the expense thereof shall be a charge upon the occupant or
any or all of the occupants of said premises, or upon the person or persons who
have caused or maintained the nuisance or other matter of the description afore-
said, and may be sued for and recovered with costs by said board in the name of
such board in any court having jurisdiction. Whenever execution upon any judg-
ment so obtained shall have been returned wholly or in part unsatisfied, said
judgment, for the amount so unsatisfied, shall be a lien upon said premises, hav-
16



123 SuPEKvisoEs' Manual.

ing preference over all other liens or incumbrances whatsoever. But in order to
acquire such lien such judgment, if in a court not of record, shall first have been
docketed in the same place and manner as by law now required to make judg-
ments in such courts liens upon real estate. And whenever any lien upon any
premises shall have become fixed as aforesaid, the said board may cause the said
premises to be sold at public auction, for a term of time, for the payment and
satisfaction of such lien, and the expenses of such sale, giving notice of such sale
for twelve weeks successively, once in each week, in one or more newspapers
published in the city, incorporated village or town where the premises are situ-
ated, as the case may be; or if no newspaper be published in said village or town,
then in the newspaper published nearest said premises, and also serving a copy of
such notice of sale personally on the owner or agent of said premises, if known,
and a resident of said city, village or town, at least fourteen days previous to such
sale, or by depositing the same in the post-office, directed to such owner or agent
at his place of residence, if known, or the nearest post-oflSce thereto, at least
twenty-eight days previous to such sale. And the said premises shall be sold to
the person who shall ofEer to take the same for the shortest time, paying the
amount remaining unpaid upon such judgment, with interest, and the expenses
of such notice and sale. A certificate of such sale, signed by the president and
countersigned by the secretary of such board, shall thereupon be made and de-
livered to the purchaser,' and may be recorded in like manner and with like effect
as deeds of conveyance of lands, and thereupon the purchaser, his heirs or as-
signs, shall be entitled to the possession of said premises so sold as aforesaid, and
if unoccupied may immediately enter, and if occupied may have remedy against
any occupant by action or by summary proceedings, as against a tenant holding
over after expiration of his term ; and in case the costs of such action or proceed-
ing shall not be collected by such purchaser of the defendant therein, the same
shall be a lien upon said premises, having the like preference as the lien afore-
said, and the term of the said purchaser shall be extended during a time bearing
the same proportion to the original term as the amount of such costs bear to the
amount paid by such purchaser on such sale. And such term shall commence
when such purchaser shall have acquired possession. At any time after such sale,
and within six mouths after the recording of such certificate as aforesaid, the
owner or any lienor or incumbrancer of such premises, or of any part thereof,
may redem by paying to the purchaser the amount paid by him on such sale, and
all costs and expenses he may have incurred in any action or proceeding as afore-
said to obtain possession, with ten per cent interest thereon. If such redemption
be made by the owner, the right of the purchaser shall be extinguished ; and if
by such lienor or incumbrancer, the amount paid by him to redeem shall be added
to his lien or incumbrance, or if he have more than one, to the oldest , and shall
thenceforth partake of the nature thereof and be collectible by any remedy
adapted thereto. ~

Expenses Incurred, how Ghargeable, Collected and Paid.
§ 6. All expenses incurred by the several boards of health in the execution and
performance of the duties imposed by this act shall be a charge only on their re-
spective cities, villages and towns, and shall be audited, levied, collected and paid
in the same manner as other city, village and town charges are audited, levied,
collected and paid.

Health of Persons in Poor-houses Infected with Disease.
§ 6. Whenever any pestilential or infectious or contagious disease shall exist in



The Supertisor. 123

any county poor-house in tliis State, or in the vicinity of any such county poor-
house, and the physician of such county poor-house shall certify that such pesti-
lence or disease is likely to endanger the health of the persons supported at such
poor-house, the superintendent of such county poor-house shall have power to
cause the persons supported at such poor-house, or any of them, to be removed
to such other suitable place in the same county as shall be designated by the board
of health of the city, town or village within which such poor-house shall be sit-
uated, there to be maintained and provided for at the expense of the county, with
all necessary medical care and attendance, until they shall be safely returned to
the county poor-house from which they were taken, or otherwise discharged

Boards in Incorporated Villages. — Boa/rds may GomMne
§ 7. Any legally organized board of health in an incorporated village, which
comprises parts of several towns, or less than a whole town, shall have full au-
thority in regard to all matters relating to public health within said village, and
such village shall not be subject to the sanitary regulations or health officers of
the township or towns within which such village is located ; nor shall the taxable
property of any such village, while maintaining its own board of health, be sub-
ject to taxation for maintaining any town board or boards of health, or for any
expenditures authorized by such town boards ; but such expenditures of the town
boards of health shall be assessed and collected exclusively on property in the town
outside of said village. But nothing in this act shall be construed to prevent the
boards of health of two or more towns adjacent to each other, or of towns and
villages therein situated, from uniting in a combined sanitary and registration
district by the appointment of one health officer and registering officer for such
district, whose authority in all matters of general application shall be derived
from the several boards of health having jurisdiction within such district; and in
special cases, not of general application, arising within the jurisdiction of any
such board of health, the said officers shall derive their authority from such board
alone. Such combined district shall be formed subject to the approval of the
State board of health.

Mandamus.
% 8. Any duty prescribed or enjoined by this act upon any local board of health,
or any member or officer thereof, or upon the common council of any city or any
member thereof, or upon the board of trustees of any village or any member
thereof, or upon any officer of any city, village or town, may be enforced by a
mandamus at the instance of the State board of health, its president, secretary or
any member thereof.

BepeaMng Ola/me.
§ 9. Chapter one hundred and fifty-two of the laws of eighteen hundred and
forty -seven, chapter three hundred and twenty-four of the laws of eighteen hun-
dred and fifty, and the several acts amendatory- thereof, chapter five hundred and
twelve of the laws of eighteen hundred and eighty, except subdivision thirty-
four of section one of said act, and all other acts or parts of acts, general or spe-
cial, inconsistent with the provisions of this act are hereby repealed.

DECISIONS.
The defendant, tlie Board of Healtli of Newtown, claiming that
it possessed the power to prevent burials in the cemeteries of the
town, in any case where the body was brought from New York or



124 Supervisors' Manual.

Brooklyn, unless a permit was obtained from it authorizing the
burial, refused to permit the burial of bodies coming from these
places, even if accompanied by a transit permit issued by the board
of health of the city where the death occurred.

Held, that where a burial or transit permit has been procured
from a board of health of the place where the death occurred, the
body may be buried in the county or transported and buried out of
the county where the death occurs, without further ceremony or
permission.

That the plaintiffs, undertakers residing in the city of New York,
who brought this action in their own behalf and in behalf of all
other undertakers of New York and Brooklyn who might come in,
to restrain tlie defendant from requiring such additional permits to
be taken out, and from issuing the same, were entitled to the relief
sought.

Eickelberg v. Board of Health, 4? Hun, 871.

Chapter 270 of 1885, providing for the preservation of the public
health and the registration of vital statistics, was passed to provide
a uniform system for the organization of boards of health through-
out the State, and it is applicable to every incorporated village in
the State, except those in which boards of health, separate and dis-
tinct from the trustees of the village, existed at the time of its
passage.

Subdivision 12 of title 9 of chapter 674 of 1870, the charter of
the village of Edgewater, empowering the trustees of the village to
take such measures as they might deem proper for the prevention or
removal of any pestilential or infections disease, and constituting
them the board of health of the village, was repealed by the passage
of the said act of 1885, and from and after that time it became the
duty of said trustees to appoint a board of health for the village, as
thereby required.

In case the trustees fail to comply with the provisions of the said
act, any citizen of the village may apply to the court for a mandamus
to compel the trustees to appoint and organize the board of health,
as required by the act.

It is the fixed and established rule of this State that every citizen
has a right to compel the performance by public ofScers of the duty
imposed upon them of executing the laws of the State, which are
enacted for the benefit of the community.

People T. Daley, 87 Hun, 461.



The Supeevisok. 135

Under the provisions of chapter 790, Laws of 1867, sections 3
and 4, the occupant of land upon which there is a nuisance, which
he fails to remove after notice from the board of health of a village,
is to be charged with the expense of abating such nuisance and not
the village.

The expenses with which, under chapter 324, Laws of 1 850, sec-
tion 5, as amended by chapter 761, Laws of 1868, the village is
chargeable, are expenses other than those incurred by an abatement
done pursuant to chapter 790, Laws of 1SG7, sections 3 and 4, sv/pra.

Prendergast v. Tillage of Sobaghticoke, 25 N. Y. W. Dig. 120.

TJnder Laws of New York, 1885, chapter 270, sections 3 and 4,
requiring an order of the board of health for the removal of a spe-
cial nuisance to be served on any occupant and the owner of the
premises where the nuisance exists, and in case of disobedience, au-
thorizing the removal of the nuisance and making the expense
thereof a charge on the occupant, an orcler directed to the one having
an interest in the premises whereon a nuisance exists, for its removal,
and served on his agent, who was in the occupancy of the premises,
does not require the agent to remove the nuisance.

Ly decker «< aZ. T. Bells, 3 N. Y. Supp. 323.

In an action, brought by the board of health of the town of
Brighton, organized under the provisions of chapter 431 of the
Laws of 1881, to restrain the defendant, a municipal corporation,
from discharging the contents of certain sewers, or permitting the
same to run over lands in the town of Brighton, or into any of the
creeks, streams or waters of that town, the right of action was
claimed to exist by virtue of the provisions of chapter 351 of the
Laws of 1882.

Held^ that the last-mentioned act was repealed by section 9 of
chapter 270 of the Laws of 1885, providing that "chapter 152 of
the Laws of 1847, chapter 324 of the Laws of 1850, and the several
acts amendatory thereof; chapter 512 of the Laws of 1880, except-
ing subdivision 34 of section 1 of said act, and all other acts or
parts of acts, general or special, inconsistent with this act, are
hereby repealed."

That the act of 1882, entitled " An act supplemental to chapter
431 of the Laws of 1881, entitled ' An act to amend chapter 324
of the Laws of 1850,'" was, within the provisions of the repealing
act above mentioned, an act amendatory of chapter 324 of the Laws
of 1850.



126 SuPEEVisoEs' Makual.

That the claim that the act of 1885 only repealed Bncli portions
of the act of 1850 and the acts amendatory thereof as were incon-
sistent with the provisions of the act of 1885 could not be sustained,
as it was plain that the words " inconsistent with," etc., in the act
of 1885, qualified only the words " all other acts or parts of acta,"
and did not qualify the preceding enumeration of acts including the
acts of 1882.

Hoghsonv. The City of Rochester, 49 Hud, 45.

Under the act of 1850 (chapter 324, Laws of 1850), providing for
the organization of boards of health, as amended in 1882 (chapter
351, Laws of 1882), while the board of health of a town may not
summarily execute its orders as to the abatement of a nuisance by
going outside of the boundaries of the town for that purpose, it may
invoke the aid of the court to restrain a violation of its order and
to enforce the abatement of the nuisance, although the cause thereof
arises in an adjoining municipality.

It is not essential to the validity of the service of a special order
made by a board of health, requiring the abatement of a nuisance,
that it be served on the occupant of the premises whereon the
nuisance exists, within the territorial jurisdiction of the board ; a
service outside of the jurisdiction is sufficient.

The city of R. having, under legislative authority, acquired land
in the adjoining town of B., and opened ditches thereon to carry oS
the drainage of the city, dug such ditches and constructed sewers
which discharged into the ditches near the boundary between the
city and town, and the sewage was thus carried upon and over the
town lands into a creek, creating a nuisance in the town dangerous
to public health. Plaintiffs, constituting the board of health of the
town, passed a resolution declaring that such discharge of sewage
was a nuisance, ordered it to be suppressed and authorized the com-
mencement of an action to restrain a violation of the resolution. A
copy of the resolution was served upon the city by delivering it to
the proper city authorities, the delivery being made in the city.
The city, in violation of the order, continued the nuisance by per-
mitting the sewage to be discharged as before. Held, that an action
was maintainable to enforce the order and to restrain the continuance
of the nuisance ; that while the board could not go into the city and
interfere with its sewers, it could enforce its orders and prevent the
discharge of the sewage upon the lands of the town where it created
a nuisance ; that the order related to a matter within tbe town and
within the jurisdiction of the board ; also, that the city was, within



The Supbrvisok. 137

the act, an occupant of tlie premises in the town on which the nui-
sance existed, and was properly served with notice ; and that a con-
tinuance of the discharge of the sewage after service was a violation
of the order.

Gould et al. v. City of Rochester, 105 N. T. 46.



CHAP. 329, LAWS OP

AN ACT to prevent tlie spread of contagious and infectious diseases.

Passed May 13, 1886.

The People of the State of New York, represented in Senate and Assembly, do
enact as follows :

Body to he Inclosed in Sealed Casket.

Sectioit 1. Whenever the body of any deceased person is to be transported
over the railroads of this State, or upon any passenger steamboat plying upon the
livers of this State, the board of health to which application is made for a transit
permit for the transportation of such body shall, if the physician's certificate or
the permit accompanying such body, state the cause of death to have been a con-
tagious or infectious disease, require that such body be inclosed in an hermeti-
cally sealed caslset of metal or other indestructible material.

See Decisions last above.

Destruction of Adulterated Wines. ~ Adul-
terated Wines Defined, etc.

Section 1. "Adulterated Wine" Defined.— All

liquors denominated as wine, containing alcohol, " except such as
shall be produced by the natural fermentation of pure, undried
fruit juice," or compounded with distilled spirits, or by both
methods, except as permitted by section 2 of this act, whether
denominated as wine or by any other name whatsoever, in the
nature of articles for use as beverages, or for compounding with
other liqiiors intended for such use, and all compounds of the same
with ;^ure wine, and all preserved fruit juices compounded with sub-
stances not produced from undried fruit, in the character of or in-
tended for use as beverages, or for use in the fermentation or prepa-
ration of liquors intended for use as beverages, and all wines, imita-
tion of wines, or other beverages produced from fruit which shall
contain any alum, baryta salts, caustic lime, carbonate of soda, car-
bonate of potash, carbonic acid, salts of lead, glycerine, salcylic* acid,
or any other antiseptic, coloring matter, other than that produced
from undried fruit, artificial flavoring, essence of ether, or any other
foreign substance whatsoever which is injurious to health, shall be
denominated as adulterated wine, and any person or persons who

* So in the original.



128 Supervisors' Manual.

shall mauufacture with the intent to sell, or shall sell, or of-
fer to sell, any of such wine or beverages shall be guilty of a
misdemeanor, and shall be punished by a fine of not less than
$200, or more than $1,000, or imprisonment in the county jail
for a term of not less than six months, or more than one year,
or by both such fine and imprisonment iu tlie discretion of the
court, and shall be liable to a penalty of $1 for each gallon thereof
sold, offered for sale or manufactured with intent to sell, and
such wine or beverage shall be deemed a public nuisance and
forfeited to the State, and shall be summarily seized and destroyed
by any health ofiicer within whose jurisdiction the same shall be
found, and the reasonable expense of such seizure and destruction
shall be a county charge.

§ 2. " Pure Wine " Defined. — For the purpose of this
act the words "pure wine" shall be understood to mean the fer-
mented juice of uudried grapes or other undried fruits, provided,
however, that the addition of pure sugar to perfect the wine, or
the addition of pure distilled spirits to preserve it, not to exceed
eight per centum of its volume, or the using of the necessary things
to clarify and fine the wine, which are not injurious to health, shall
nbt be construed as adulteration, but such pure wine shall contain
at least seventy-five per centum of pure grape or other undried
fruit juice.

§ 3. " Half Wine " Defined. — For the further purpose
of this act, should any person or persons manufacture with the in-
tent to sell, or sell or offer to sell, any wine which contains less
than seventy-five per centum and more than fifty per centum of



Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 14 of 96)