App. Div.] First Department, December, 1913. of property and business, and is a source of annoyance, discomfort and inconvenience, more or less, to all within the city." An act of the Legislature prohibiting the use of soft coal to a limited extent in Brooklyn has been sustained. (City of Brooklyn v. Nassau Electric R. R. Co., 44 App. Div. 462; City of New York v. Johns-Manville Co., 89 id. 449.) The learned counsel for the respondent insists that the discharge of any dense smoke, no matter of what color or nature and even if accidentally or only momentarily, is prohibited by this section of the Sanitary Code. These provisions should not be construed literally, especially since that might render them void. The information charges that the violation was willful. Although that is not expressly embraced in the provision in question, yet since a violation is deemed a misdemeanor, the section should not be construed as applicable where the discharge of the smoke is accidental or unavoidable. It is the spirit and intent of the law, rather than its letter, that governs, and, therefore, these provisions should be considered in the light of the purpose for which they were intended and of the authority under which they were enacted. (Riggs v. Palmer, 115 N. Y. 506; People v. Sturgis, supra; Atlantic City v. France, 75 N. J. L. 910; 18 L. R. A. [N. S.] 156.) It is evident that the object of this enactment was the prevention of the discharge of smoke of such a character and in such quantities that it might injuriously affect the public health or comfort, or injure property, and the court would not be warranted in convicting for a violation of this section, excepting on evidence from which an inference to that effect might be drawn. I think that the application of this section was not intended to be limited to cases in which evidence is adduced embracing every element upon which a conviction as for maintaining a public nuisance might have been had at common law, or even under the Penal Law (§ 1530 et seq.), and that it should not be so limited. The section should have a reasonable construction which would preclude a conviction for a mere accidental or occasional momentary discharge of dense smoke, but which would insure the prevention of a continuous discharge or a discharge at intervals of large volumes of smoke, such as is caused by the use of soft coal. I agree with the view expressed by the court First Department, December, 1913. [Vol. 159. in St. Louis v. Heitzeberg Packing Co. (141 Mo. 375) that a penal law or ordinance should be sufficiently definite, so that those whose conduct it is intended to govern may know their duty, and that if not, it should not be sustained on the theory that officials will exercise a wise discretion in enforcing it. But it is for the court and not for the prosecuting officer to decide in a given case whether this section has been violated, and there should be no difficulty in so enforcing it as to suppress the smoke nuisances at which it was aimed without requiring actual proof of injury to the public health or to property. In State v. Tower (supra), where a statute prohibiting "the emission or discharge into the open air of dense smoke within the corporate limits of cities" having a population of 100,000 was sustained as valid, the court said: "The only remaining proposition is that the Legislature could not declare the emission of dense smoke into the open air of a city of one hundred thousand inhabitants a nuisance, without qualifying it by adding to it that such smoke must injure the property in the neighborhood, or affect the health or interfere with the comfort of the citizens of the neighborhood. We have already ruled that the Legislature, charged with the duty of guarding the public interests, and vested with a wide discretion and liberty of choice, must be presumed to have inquired into and duly considered the effect, present and prospective, of the continual emission, constantly or at intervals, of dense smoke, upon those public interests in respect to safety, comfort, and cleanliness." The power to declare what is and what shall be a public nuisance is clearly a legislative one, and the act in question is clearly an exercise of the police power, and "there is nothing in the act which smacks of oppression, but on the contrary, it accords with the universal experience that dense smoke, emitted in a large, populous and crowded city, is a nuisance, though it may not have been previously so held at common law or so declared by statute." In Harmon v. City of Chicago (110 Ill. 400), where the same points as are now presented were urged against the validity of an ordinance prohibiting the discharge of "dense smoke," the court in construing and sustaining the ordinance said: "Nor will any subtle distinctions be indulged as to what App. Div.] First Department, December, 1913. is meant by 'dense smoke,' as those terms are used in the ordinance. The terms used will be understood as commonly employed, and the court will understand by dense smoke' precisely what everybody else does that has ever seen a volume of dark, dense smoke as it comes from the smoke-stack or chimney where common soft or bituminous coal is used for fuel in any considerable quantities. * * * "It is but stating what is a matter of common observation, that 'dense smoke' is caused by the kind of fuel used in furnaces and fire boxes." These views were quoted with approval in City of St. Paul v. Haugbro (93 Minn. 59). In St. Louis v. Heitzeberg Packing Co. (supra) an ordinance declaring the discharge of "dense smoke" a public nuisance was declared void on the ground that authority to enact it had not been delegated by the Legislature, and stress was laid on the fact that the city depended largely on bituminous coal in the vicinity, as showing the unreasonableness of the ordinance; but in that case it was conceded of record that such emission of smoke could not be prevented by any known device; and the same court later (State v. Tower, supra) sustained a statute in the same language prohibiting the emission of smoke. In the later case the court observed that the evidence showed that the escape of such smoke was preventible, but apparently recognized that without an express provision to that effect it might be shown in defense that it could not be prevented. The court in that case also assumed, without discussing it, that "dense ” meant thick and opaque. If, however, what it was intended to prohibit by this section would constitute a public nuisance, or if it must be limited to cases of that kind in order to sustain it, still it could be upheld even on that theory. It is of no importance that it does not declare dense smoke to be a public nuisance. (Harmon v. City of Chicago, supra, 412.) Pursuant to authority duly delegated the acts have been forbidden, and the Legislature itself has declared the offense to be a misdemeanor. That is quite sufficient. If the section should be construed as applying only to such emissions of smoke as would constitute a public nuisance, as the Supreme Court of Minnesota construed a statute First Department, December, 1913. [Vol. 159. phrased in the same terms, it would still be valid, for a prohibition against the emission of "dense smoke" may be construed as forbidding the discharge of smoke of such character and in such volume as to constitute a public nuisance, which it has frequently of late been declared to be. (City of St. Paul v. Haugbro, supra; Harmon v. City of Chicago, supra; Bowers v. City of Indianapolis, supra; Moses v. United States, supra; Atlantic City v. France, 75 N. J. L. 910; 18 L. R. A. [N. S.] 156; Glucose Refining Co. v. City of Chicago, 138 Fed. Rep. 209. See, also, People v. Lewis, 86 Mich. 273.) In Atlantic City v. France (supra) an ordinance enacted under authority such as the general welfare clause of municipal charters prohibiting the emission from smokestacks of furnaces of "dense smoke, which contained soot in sufficient quantity to permit the deposit of such soot on a surface within" the city, was sustained, but only on the theory that it was not to be construed literally, but should be limited "to smoke of such character as invades the rights of persons and property, or affects injuriously the public health." That there has been widespread progressive public agitation for the suppression of smoke nuisances is shown by the fact that in at least three States the Legislature itself has declared dense smoke to be a public nuisance per se, or it was so declared under authority clearly delegated by the Legislature, after ordinances to the same effect had been declared void, as unauthorized; and the later legislation was in every instance sustained by the court of final review. (St. Louis v. Heitzeberg Packing Co., supra; State v. Tower, supra; City of St. Paul v. Gilfillan, supra; City of St. Paul v. Haugbro, supra; State ex rel. City of Indianapolis v. Indianapolis Union R. Co., 160 Ind. 45; Bowers v. City of Indianapolis, supra.) It follows that the order should be reversed and demurrer disallowed, with leave to withdraw the same and plead over. MCLAUGHLIN, CLARKE and SCOTT, JJ., concurred; INGRAHAM, P. J., concurred in result. Order reversed and demurrer disallowed, with leave to defendant to withdraw demurrer and plead over. Order to be settled on notice. App. Div.] REGINALD H. SAYRE, Respondent, v. PROGRESSIVE CONSTRUCTION AND LEASING COMPANY, Appellant. First Department, December 19, 1913. Pleading - dismissal of counterclaim under section 547 of the Code of Civil Procedure where other issues remain undetermined - judgment. A plaintiff is not entitled to a judgment dismissing a counterclaim on a motion under section 547 of the Code of Civil Procedure where other issues remain undetermined. It is a general rule that there can be only one final judgment in an action where the issues therein have not been severed. APPEAL by the defendant, Progressive Construction and Leasing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1913, dismissing the defendant's counterclaim, with costs, and also from the final judgment entered in said clerk's office on the 26th day of February, 1913, pursuant to said order, as said judgment was resettled and amended by an order entered in said clerk's office on the 23d day of July, 1913. Henry S. Dottenheim [Robert C. Birkhahn with him on the brief], for the appellant. Robert Kelly Prentice, for the respondent. LAUGHLIN, J.: Other issues raised by the amended complaint and amended answer, so far as this record shows, remain undetermined. No demurrer which might have been brought on for trial by motion (Code Civ. Proc. § 976) was interposed to the counterclaim. The judgment dismissing the counterclaim was entered pursuant to an order made on the plaintiff's motion for judgment dismissing it. We do not deem it necessary to consider the sufficiency of the counterclaim, for that question could not be presented for decision by a motion which, if granted, would not dispose of all of the issues in the action and entitle the moving party |