
    Bernhard Rosenstock and Leopold Hellinger, Respondents, v. Charles Laue, Appellant.
    First Department,
    November 4, 1910.
    Real property — lateral support — excavations over ten feet in depth in city of New York — Building Code construed —liability of owner.
    Under section 33 of the Building Code of the city of New York, providing that whenever an excavation shall be carried more than ten feet below the curb line the person causing the excavation to be made shall, if afforded the necessary license to enter the adjoining land, preserve the walls of adjoining buildings from injury, there is an obligation resting upon the owner who causes the excavation to be made from which he cannot escape by having the work performed by an independent contractor or agent.
    Hence, in an action against such owner to recover damages caused by an excavation over ten feet in depth, it is no defense to allege that the work was done by an independent contractor who had exclusive control and agreed that the excavation should be properly protected as required by law.
    Appeal by the defendant, Charles Lane, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27tli day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs’ demurrer to the second affirmative defense contained in the defendant’s answer.
    
      Robert Thorne and Herbert K. Stockton, for the appellant.
    
      Samuel Hellinger, for the respondents.
   Ingraham, P. J.:

The cause of action alleged in the complaint is to recover the damages sustained by the plaintiffs as the owners of Nos. 88 and 90 Walker street, in the city of New York, caused by the excavation upon the adjoining property owned by the defendant for the erection of a building upon the defendant’s property, which excavation exceeded more than ten feet below the curb.

The answer admits the ownership of the. premises upon which the excavation was made by the defendant and the erection thereon by him of an eight-story building. The answer then denies the other allegations of the complaint; and “for a second separate, distinct, affirmative defense to the said complaint ” alleges that on or about the 11th day of July, 1907, the defendant entered into a contract in writing with one Duffy, who thereby agreed to make the excavation on the premises known as 92 and 94 Walker street according to specifications to be furnished; that the said specifications were fur- “ nished to Duffy, which provided that the depth of said excavation should be ten feet below the curb, and that all excavations were to be properly protected as required by law, and that said Duffy took possession of and had entire and exclusive control and management of the work, workmen and furnishing of materials under Ms contract, and that said Dnifv was in possession of the said premises at the time of the alleged injury to the plaintiffs’ alleged building mentioned in the complaint, and that neither said Duffy nor his agents or" employees were in any sense servants of the defendant.

The rule is well settled that each separate and distinct defense must be complete in itself, and if each separate and distinct defense does not state facts which would be sufficient to defeat the plaintiffs’ cause of action, or some part thereof, it is not sufficient upon demurrer. By section 1 of chapter 6 of the Laws of 1855 it was provided that whenever excavations commenced for building or other purposes on any lot or piece of land in the city and county of Rew York shall be intended to be carried to the depth of more than ten feet below the curb, the person causing such excavations to be made should at all times from the commencement to the completion thereof, if afforded the necessary license to enter upon the adjoining land, preserve any adjoining or contiguous wall from injury, and support the same by proper foundations. Under this statute it was held in Dorrity v. Rapp (72 N. Y. 307) that the owner of a lot adjoining a building was the person who caused the excavation to be made when such excavation was made under a contract with a third party; and the fact that such a contract was made did not exempt the owner from the-performance of the duty imposed by statute. This act of 1855 was re-enacted as section 474 of the Consolidation Act (Laws of 1882, chap. 410), and, as amended by chapter 456 of the Laws of 1885, chapter 566 of the Laws of 1887, and chapter 275 of the Laws of 1892, which latter statute also placed the provisions in section 473 of the Consolidation Act, remained in force, pursuant to section 647 of the Greater Rew York charter (Laws of 1897, chap. 378), until the enactment of the Building Code of the city of Rew York. (See, also, Revised Greater Rew York Charter [Laws of 1901, chap. 466], § 407, as amd. by Laws of 1904, chaps. 602, 628.) Section 22 of the Building Code, which took the place of this provision of section 473 (former section 474) of the Consolidation Act, provides that: “ Whenever an excavation of either earth or rock for building or other purpose's shall be intended to be or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times, from the commencement until the completion thereof, if afforded the necessary license to enter upon the adjoining land, and not otherwise, at his or their own expense, preserve any adjoining or contiguous wall or walls, structure or structures from injury.” This complaint alleges as a fact, which is not denied by this separate defense, that the excavation was actually carried to a depth of more than ten feet below the curb, and thus the defendant is liable for the resulting injury to the adjoining property if he was the person causing such excavation to be made. The fact that a person under a contract with the owner of the land actually made the excavation would not relieve the owner from liability if the owner could be said to be the person causing the. excavation to be made. The liability of the owner of land does not at all rest upon the fact that the contractor, when he came to make the excavation, was the agent of the owner, or that the owner was responsible upon the principle of respondeat superior. What this provision was clearly intended to accomplish was a determination of the obligation resting upon the owners of adjoining buildings so that-the owner of property was relieved from liability for an injury to adjoining property caused by an excavation on his own land which was not more than ten feet in depth, but imposing such a liability where he caused án excavation on his own land which exceeded ten feet in depth. In the latter case the statute makes it the duty of the person causing the excavation to be made, if afforded the necessary license to enter upon the adjoining land, to support the walls of the adjoining building. Thus, the owner of a building who sees an excavation about to be made on. an adjoining lot must be prepared to support his building when the excavation on the adjoining property does not exceed ten feet in depth; but when it does exceed ten feet in depth he need give no support to his own building bui can rely upon the obligation imposed upon the owner of the property upon which the excavation is made to support the adjoining walls. The provision would be of little value if the owner of the property upon which the excavation is made could relieve himself from all obligation to protect his neighbor’s property by turning the excavation over to a contractor. The words “ the person or persons causing such excavation to be made ” apply to the owner of the property who employs a third person to make such an excavation whether such an employment is by contract or otherwise. The person who owns the property and directs either his servants or agents or an independent contractor to make the excavation is clearly the person causing it to be made, and if he wishes to relieve himself from responsibility he must see to it that his contractor, agents or servants, when engaged in'making the excavation, either limit the excavation to ten feet or take the necessary steps to protect the wall of the adjoining building.

I think it clear, therefore, that making the contract for the excavation does not relieve the owner of the property from the obligation imposed by the section of the Building Code in question.

It follows that the defense was not sufficient and that the judgment should be affirmed.

Clarke, Scott, Miller and Dowling, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to amend on payment of costs.  