
    Henry H. Snow, Resp’t, v. Joseph Pulitzer, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 24, 1894.)
    
    1. Party walls—Support—Lessor and lessee.
    Where the owner of two adjoining houses leases one, which is so constructed as to require the support of the wall of the other house, and his grantee, during the term of such lease, removes the supporting wall, the latter is liable in damages to the tenant.
    2. Same—Liability.
    His responsibility does not depend upon his knowledge that the removed wall was necessary to the support of the wall of the leased building.
    3. Same—Defense.
    The fact that the fire department caused the greater portion of the wall to be removed, is no defense.
    4. Same—Damages. *
    In such case, if the lessee is evicted and his business broken up, the prospective profits of such business for the remainder of the term is a proper item of damage.
    Appeal from judgment of the general term of the supreme' court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new.trial. This action was brought to recover damages to property held by plaintiff, as lessee, and caused by the tearing down of an adjoining building. The facts, so far as material, are stated in the opinion.
    
      John N. Mowers, for app’lt; Abel OrooJc, for resp’t.
    
      
       Affirming 49 St. Rep. 911.
    
   Earl, J.

In 1848 Mr. French erected as even-story building in the city of New York. Subsequently another person erected an adjoining four-story building, atid still later another owner erected another adjoining building, thus making three buildings in the block. There were no party walls, the buildings all having independent walls. Subsequently French became the owner of all the buildings and converted them into a hotel, called French’s Hotel, the buildings being used together as one building with doors and openings through them.

The hotel property passed by will from French to his daughter,. Helen A. French, and in January, 1886, she leased the first floor of the four-story building to the plaintiff for a term ending on the first day of May, 1889. While the plaintiff was in the occupancy of his store, on the 10th day of April, 1888, she conveyed the entire block, designating it as French’s Hotel, and describing it as an entirety, subject to the lease, to the defendant. In June thereafter he commenced to tear down the seven-story building, and after the four upper stories thereof had been removed down to the third story of the four-story building, it was found that the wall of the four-story building was supported by the adjoining wall of the seven-story building, and that it conld not stand without such support and it began to crack and break and there was imminent danger of its falling. Upon making this discovery the persons engaged in taking down the seven-story building under the defendant discontinued their work; and thereafter proceedings were taken by the fire department of the-city of New York by which the four-story building was condemned as unsafe, and there was a judgment directing the superintendent of buddings to remove the same ; and in obedience to that judgment the defendant tore down the four-story building, and the plaintiff was thus deprived of the benefit of Ins lease, was ousted from the possession of the store and his business broken up; and he brought this action to recover bis damages.

The contention of the defendant is that the plaintiff was not entitled to have the wall of the building in which his store was situated supported by the adjoitdng wall of the seven-story building, that there was no easement in that wall for the support of the wall of the four-story building, and hence that no legal wrong was done to the plaintiff by the tearing down of that wall.

The trial judge held that if at the time of the lease to the plaintiff the wall of the building in which his store was located was dependent for support upon the adjoining wall, he was entitled to snob support, and the defendant could not lawfully remove that wall, and thus render the four-story building untenantable. In this ruling we think the trial judge was clearly right. We are not dealing with a case where at the time of the demise the two buildings were separately owned, but with a case where they were owned by the same person, and where all the buildings were held and owned as one entire property. When the plaintiff leased his store he became entitled, as against the lessor, to the store as it then was, and as against him to have the walls snfficiont.lv supported as they then were; and if the wall of the four-story building could not stand of itself, then he was entitled to the support of the wall of the seven story building, and the two walls constituted the wall of his building ; and the defendant had no right to remove any portion of the wall of the four-story building, or -any of its supports, so as to drive the plaintiff from his store. A landlord in such a case would have no more right-to take down the supporting wall than he would to tear down the demised building itself.

The contention of the landlord here is against both reason and justice, and has no support in any precedent or any principle of law. The rights of the plaintiff do not depend upon the technical doctrine of eviction. The defendant was a trespasser and a wrongdoer, and is just as responsible for the consequences of his acts as he would have been if he had removed the roof from the building or entered the plaintiff’s store and physically expelled him. The responsibility of the defendant in no way depends upon his knowledge that the wall of the seven-story building was necessary to the support of the wall of the four-story building. He was bound to know what he was about and cannot shield himself against a trespass because he did not foresee the consequences of his acts, or even because he did not know that he was trespassing. If he supposed that he was entitled to take down the wall of the seven-story building, to the support of which plaintiff was entitled for his store, he was mistaken, and is responsible for, the consequences of his mistake. When he heard that the wall of the four-story building could not stand without the support of the wall of the seven-story building, he was bound to take the consequences of his acts or to rebuild that wall and thus support the wall of the four-story building.

The defendant is not protected from responsibility in this case, because, after he had removed the wall of the seven-story building down to the third story óf the four-story building, thus rendering the latter dangerous and insecure, the fire department caused it to be removed. It was his act that brought on the proceeding by the fire department. He created the danger which invoked its action. It was due to his act solely that the building was finally taken down, and the plaintiff ousted and deprived of his lease. While no authority is needed for a conclusion depending on such obvious principles of right and justice, the case of Richards v. Rose, 9 Exchequer R. 218, may be cited as having some bearing. There it was held, that where several houses belonging to the same owner are built together, so that each_ requires the mutual support of the neighboring house, and the owner parts with one of the houses, the right to such mutual support is not thereby lost, the legal presumption being that the owner reserves to himself such right, and at the same time grant to the new owner an equal right; and, consequently, if the owner parts with several of the houses at different times, the possessors still enjoy the right to mutual support, the right being wholly independent of the question of the priority of their titles.

The learned counsel for the defendant complains that an improper rule or measure of damages was adopted by the trial judge. It was provided in the lease of the store to the plaintiff that the store should be used exclusively for the sale of confectionery; and at the time the plaintiff was evicted and his business broken up he was doing a large and profitable business in his line, and had on hand a large quantity of confectionery which he was required to remove. The trial judge held that if the plaintiff was entitled to recover at all he was entitled to recover the damages which were the natural consequences of the- destruction of the building occupied by him and his eviction therefrom. He had made some expenditures in fitting up the store for his business, and the judge charged the jury that he could take those expenditures into consideration. There was also damage to, and depreciation of, the stock of confectionery he had on hand, and the judge charged the jury that they could take that into consideration. He also charged the jury that, in estimating the plaintiff’s damages, they could consider the profits he could have made in his business if he been permitted to carry it on to the end of his lease. The charge of the judge as to these various items of damages seems to have been carefully limited and explained, and the only exception to which our attention is called bearing on the damages is the final exception in the case to the charge in respect to the measure of damages.” The judge was not requested to limit or explain his charge as to the measure of damages or in any way to modify the rules laid down by him, and his attention was not called to any particular part of his charge on the question of damages of which complaint was made; and hence the general exception is not available here. But the principal item of recovery was on account of the prospective profits in the plaintiff’s business during the remainder of the term of his lease, and that they were proper to be considered in estimating his damages in a case like this, where he was evicted and’his business broken up by the trespass and wrong of the defendant, was decided in Schile v. Brockhahus, 80 N. Y. 614.

The judgment should, therefore, be affirmed, with costs.

All concur, except Gray, J., not voting.

Judgment affirmed.  