
    Adolph Paltey and Gumpert Alexander, Respondents, v. Patrick B. Egan, Appellant, Impleaded with The Dearborn Construction Company and William Galway, Defendants
    First Department,
    December 6, 1907.
    Landlord and tenant — excavation by landlord on adjoining lot—damage to tenant by collapse of building —■ application of section 22 of Building Code of city of^TTew York.
    Section 22 of the Building Code of the city of New York, which provides that when a landowner excavates more than ten feet below the curb line he shall, if given a license to enter upon adjoining lands, preserve the buildings thereon from injury at his own- expense, etc., relates only to the duties of different owners of adjoining land, and has no application where the same person owns two adjoining lots and excavates upon one so that a building on the other falls. Neither does said section regulate the relations existing between landlord and tenant.
    Hence, a tenant whose goods have been injured by the collapse of a building cannot recover from his landlord because the latter, while excavating on adjoining lands owned by him, failed to comply with the requirements of said section.
    Lauohlin and Lambert, JJ., dissented, with opinion.
    
      Appeal by the defendant, Patrick B. Egan, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county, of Mew York on the 24th day of April, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1907, denying the said defendant’s motion for a new trial made upon the minutes.
    
      James Kearney, for the appellant.
    
      Charles Goldzier, for the respondents.
   Patterson, P. J.:

The defendant Egan was the owner of two lots of land with the buildings thereon, known as Mos. 65 and 67 East Eighth street, in the borough of Manhattan, in the city of Mew York. The plaintiffs, on April 1, 1904, hired from the defendant Egan the third loft of the building Mo. 65 East Eighth street, for a period expiring January 1, 1905, at a monthly rental of fifty dollars, and occupied the same until the thirtieth of May of the same year. The plaintiffs had upon the premises merchandise and other personal property. On the day last mentioned, the building (No. 65) collapsed and according to the averment of ’ the complaint, property of the plaintiffs óf considerable value was destroyed thereby. It is alleged in the complaint that the building fell and the property was destroyed because the defendant Egan (and others sued with him) wrongfully, illegally and negligently dug into and Upon the ground of the adjoining premises (No. 67). in excess of ten feet in depth below the curb, and wrongfully, illegally and negligently failed properly to shoré up the said premises occupied by the plaintiffs, or otherwise to support them, as required by law, although they could have obtained permission from the owner and tenants of the said premises to enter the same for the purpose of making such shoring, and although such support, shoring and appurtenances for the safety of the said premises could have been made on the outside thereof, upon the premises occupied by the defendants for the purpose of the digging, as aforesaid, and wrongfully, illegally and negligently dug away and weakened the foundations of the premises occupied by the plaintiffs as aforesaid, by reason whereof and of the defendants’ negligence, and without any negligence on the part of the plaintiffs, the said building occupied by the plaintiffs, as aforesaid, fell and was destroyed, and the property of the plaintiffs being in and upon the said premises, as aforesaid", of the value as aforesaid, was totally destroyed.

The defendant Egan, in his 'answer, denied those allegations of the complaint, and set up as an affirmative defense that he had contracted with the Dearborn Construction Company (one of the defendants) to do certain work and perform and furnish materials for remodelling the building No. 65 East Eighth street, and for building an extension to the building No. 67 East Eighth street, in accordance with plans and specifications ón file with and approved by the building department of the city of New York, and that the Dearborn Construction Company had possession of and the entire and exclusive control of such work and workmen and the furnishing materials under its contract, and was still in the possession of such buildings at the time of the fall thereof mentioned in the complaint. The Dearborn' Construction Company failed to appear on the trial of the cause and a verdict was rendered against the defendant Egan and that company. The defendant Egan made a motion for a new trial on -all- the grounds stated in section 999 of the Code of Civil Procedure, which motion was denied, and from the judgment entered upon the verdict and from the order denying a motion for a new trial the defendant Egan appeal's.

On the trial the last named defendant moved to dismiss the complaint at the close of the plaintiffs’ case in chief, on the ground that the plaintiffs had failed to sustain any of the allegations of negligence set forth in the complaint, which was all the negligence alleged upon which the action was brought; and- at "the conclusion of the whole case the motion was renewed on the same grounds, and on the additional ground that it appeared in evidence that the defendant Egan employed a competent architect and a competent builder, and that the work being done under plans and specifications approved by the building 'department of the city of New York, and the work then being in the hands' of an independent contractor, he, Egan, was absolved from liability. The motion for nonsuit being denied, the case was sent to the'jury by the trial] ustice upon the specific ground that the defendant was liable, if at all, only because of a violation of section 22 of the Building Code of New York, which provides that all excavations for buildings shall be properly guarded and protected, and that whenever an excavation of either earth or rock for building or other purposes 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, and support the same by proper foundations, so that' the said wall or walls, structure or structures, shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining or contiguous wall or walls, structure or structures, are down more or less than ten feet below the curb.

The trial justice specifically charged the jury that: “If this defendant Egan caused this excavation to be made it became his duty under the statute to guard and support this adjoining structure so as to preserve it in such manner that it remained practically as safe as before such excavation was commenced. If he failed to do so, and the falling of the wall and the" collapse of this building were due to such failure on his part to comply with the statute, he is liable for the damages resulting to plaintiff from such failure to comply with the statute.” He also charged the jury as follows : “ If you find that the collapse of the building was not caused by a failure on the part óf the defendant Egan to properly shore up and protect and support the building occupied by the plaintiffs during the progress of the excavation work, * * * the plaintiffs would not be entitled to recover in this action for the reason that such a cause of action is not set up in the complaint.”

It is thus obvious from the whole case that the liability of the defendant Egan sought to be enforced in this action was presented to the jury as arising solely from a violation of or non-compliance with the provisions of section 22 of the Building Code applying in the city of New York, and upon the theory that the violation of a statute which imposes a duty upon any person may furnish a right of action for damages to any one who has an interest in its observanee, it being shown that the injury was the direct or necessary result of such violations. ( Willy v. Mulledy, 78 N. Y. 310; Huda v. American Glucose Co., 154 id. 474; Pauley v. S. G. & L. Co., 131 id. 90.) It is disclosed by the record that there was a wall standing upon Egan’s land which separated the two buildings: It is also clearly established that the defendant Egan and his contractor did not excavate to the depth of ten feet below the surface, although in his evidence one of the plaintiffs indulged in a mere guess that such excavation was actually made. It does -appear, however, that the fall of the building was caused by some negligence of Egan or the contractor. The front of building No. 65 had been taken out and-in the progress of the work of alteration of the buildings a mass of debris or material was deposited upon one of the floors of the building No. 65, and a supporting beam was withdrawn from the wall. It was undoubtedly the superincumbent weight of this -mass of material, in connection with the general weakening of the structure,, that caused the disaster. Whether the plaintiffs might maintain an action against their- landlord for-damages sustained by reason of this negligence it is not now material to inquire. The trial judge instructed the jury that damages caused by such negligence could not be recovered ■ in this action, and, therefore, the single question upon this appeal relates to the existence of a liability of the defendant Egan, based solely upon his failure to comply with the provisions of the Building Code above referred to. If such liability exists, the trial judge was quite right in stating to the jury that the defense of the work béing under the charge of an independent contractor could not avail the owner, for he being under a statutory duty, was' bound to perform it; but we are of opinion that those portions of ’section 22 of the Building Code, the violation of which was regarded by the trial judge as furnishing a cause of action to the plaintiffs, are not applicable under the ,facts disclosed by this record and in an action between the tenant and his landlord. The section referred to is substantially a re-enactment of chapter 6 of the Laws of 1855, and was intended to and does only relate to the duty and obligation of one owner of land under given circumstances to protect the land and building of an adjoining owner. As was said in the much-quoted case of Dorrity v. Rapp (72 N. Y. 309), by the common law an owner of land contiguous to the land of another, upon which a building is erected, is not bound to protect the owner of the building against injuries xyliich may result thereto from excavations on his own land, in the absence of any right by prescription or grant in the owner of the building to have it supported by the land of the person making the excavation. The natural right of support as between the owners of contiguous lands existed in respect of land only, and not the buildings or erections thereon. One owner was not under obligation to shore up his neighbor’s house, nor was there any duty arising from contiguity merely, upon the owner intending to excavate, simply'to give his neighbor notice of his intention. As pointed out in the case cited, that being the state of the common law, the Legislature in 1855 interposed to regulate the exercise by owners of land in the cities of Uexv York and Brooklyn of the right of excavation, and to afford the owners of buildings a new protection from injuries from excavations on adjoining lands. And it is said in that case that the primary object of the statute was to cast upon the party making an* excavation upon his land, exceeding ten feet in depth, the risk of injury resulting therefrom to the wall of an adjoining owner, and the burden of protecting it. The proviso “if afforded the necessary license” xvas inserted simply to meet the contingency of a refusal by the owner of the adjoining building to alioxvthe party making the excavation to enter upon his premises to shore up, or otherwise support his wall. Unless he was permitted to do so, his entry for that purpose would be a trespass.

It'is obvious, we think, that the scope of this statute is confined to relations existing between different owners of contiguous lots of land with buildings thereon, and hence where the same person oxvns both pieces of property, the statute does not apply. There may be a liability of the defendant Egan for the damage which the plaintiffs sustained by reason of the acts of Egan, or of his agents resulting in loss and damage to the plaintiffs. We are not called upon to decide that question in this action, but we are limited to the consideration of a right of action based upon non-compliance with the requirement of a law which applies only to adjoining owners of property and concerns their right and obligations and does not regulate the relations existing between landlord and' tenant.

We, therefore, are of the opinion that this action was brought under a misconception of the plaintiffs’ proper rights and remedy, and that the judgment and order must-be reversed and a new trial ordered. We do not intend hereby in any way to decide or intimate that the plaintiffs may not maintain a properly constructed action against the defendant Egan for damage sustained by reason of the collapse of the building in which their merchandise was stored.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

■ McLaughlin and Houghton, JJ., concurred; Laughlin and Lambert, JJ.;. dissented.

Laughlin, J. (dissenting):

I am of opinion that the statute in question was intended to impose a liability for the benefit of a tenant or occupant of a building, as well as in behalf of an adjacent owner. The former statute which has been superseded by the Building-Code of Hew York was declared to be remedial in its nature and it was liberally construed to impose a liability within the spirit but beyond the letter of the law. (Bernheimer v. Kilpatrick, 53. Hun, 316 ; affd., 127 N. Y. 672.) The Building Code of Hew York is entitled: “A Remedial Ordinance,” and section 2 thereof provides as follows: “ This ordinance is hereby declared to be remedial, and is to be construed -liberally, to . secure the beneficial interests and purposes . thereof.” Although enacted by the municipal legislative body, it was ratified by the Legislature and has the force and effect of a legislative enactment. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 407; as amd. by Laws of 1904, chaps. 602, 628 ; City of New York v. Trustees, 85 App. Div. 355 ; affd., 180 N. Y. 527.) The majority of the court, according to the opinion about to be announced, take the limited view- that the statute is only intended for the benefit of the owner of the fee and that it does not inure to the benefit of a tenant. 'There was some evidence that the excavation ,was more than ten feet in depth, but as I view the case that is immaterial. Section 22 of the Building Code clearly enjoins upon a party about to excavate or cause the excavation of lands to the depth of more than ten feet below the curb, the duty of preserving the wall of the building on adjoining land from injury by'supporting the same “ by proper foundations, so that the said wall or walls, structure or structures shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining or contiguous wall or walls, structure or structures are down more or less than ten feet below the curb.” The defendant was not the owner of the .fee 'of either premises, but he had a leasehold interest for a long term of years of both No. 65 and No. 67 East Eighth street. If the excavation had been carried to the depth of more than ten feet below the curb and damages were caused thereby, under this provision of the law the defendant would be liable absolutely for the collapse of the building. (Dorrity v. Rapp, 72 N. Y. 307.) This court is about to decide, however, that the liability would only extend to the owner of the adjacent building which collapsed and not to a tenant or occupant thereof. In Cohen v. Simmons (21 N. Y. Supp. 385; affd., 142 N. Y. 671) an action by a tenant for years for damages was sustained under the former statute. I see no ground for construing the statute as applying to some tenants and not to all, and in the case last cited the court, at General Term, in overruling the objection that the action could be maintained only by the owner of the fee, say : “ We have examined the statute in vain to find any such restriction as to the right to recover. It would appear that anybody who is injured by a violation of the statute has a right to maintain an action for the damages sustained thereby.” The duty is not imposed in terms for the protection of the building only and I see no ground for precluding a recovery for damages to other property. If the excavation had not been made to a depth of more than ten feet'below the curb at the time of the accident then the defendant, as the owner of the building which collapsed, was liable for having failed to secure the wall under the following provisions of section 22 of the Building Code, to wit: “If such excavation shall not be intended to be or shall not be'carried to a depth of more than ten feet below the curb, the owner or owners of such adjoining or contiguous wall or walls, structure or structures shall preserve the same from injury and so support the same by proper foundations that it or they shall be and remain practically as safé as before such excavation was commenced, and shall be permitted to enter upon the premises where such excavation is ■ being made for that purpose, when necessary.” The provision last quoted is quite significant as bearing upon the true construction of the statute and I think is a complete answer to the contention that the statute was only intended for the. benefit of the owner of the adjoining building. This provision of the Building Code provides in effect that the owner of the building adjacent to the excavation must protect his own building in such manner that the same shall-remain practically as safe as before in case the excavation is not to be carried over-ten feet. Surely the Legislature would riot deem it necessary to-require the owner to do something for his own protection. It is manifest, therefore, that it was intended to safeguard the rights of others. It may be said that it was intended merely to prevent the building falling upon the premises upon which the excavation was to be made, to the damage or delay of others engaged in the work of construction ; but there is nothing in the language employed to indicate that it was intended to limit the duty to the protection of. those. ■ The duty is imposed in broad, unqualified terms, without any specification of the party or parties for whose' benefit its performance is required. If the duty of the defendant, as owner of the premises upon which the excavation was being made, did not arise until the excavation" reached a depth-of more than ten feet below the curb, then until that time_ his duty as owner of the premises upon, which the building collapse^ existed, and upon either theory lie. is liable. I, therefore, vote for affirmance.

Lambebt, J., concurred.

Judgment and order reversed, new trial orderéd, costs to appellant . to abide event. 
      
       See Consol. Act (Laws of 1882, chap. 410), §§ 473, 474, as amd. by Laws of 1885, chap. 456; Laws of 1887, chap. 566, and Laws of 1892, chap. 275. See also Cosby’s Code Ord. (Anno. 1907), 174,175.— [Rep.
     
      
       See footnote ante p. 516.— [Rep.
     