
    Bernheimer v. Kilpatrick.
    (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Party-Walls—Excavations—Support.
    Laws N. Y. 1883, c. 410,_ § 474, provides that “ whenever excavations for building or other purposes, on "any lot or piece of land in the city and county of Hew York, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from in jury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced. ” It appeared that defendant made an excavation more than 10 feet deep on his lot adjoining the building of plaintiff, and provided no support for plaintiff’s wall after completion of the excavation. Meld, that the duty of preserving plaintiff’s wall from injury did not cease with the completion of the excavation, as he was required to so support it that it would “remain as stable as before. ”
    2. Same—Injury to Wail—Proximate Cause.
    Where the testimony shows that a wall stood a number of years without settling, and that when a deep excavation wot made beside it cracks appeared, and it settled perceptibly towards the excavation, the jury is justified in concluding that there was a direct connection between the injuries to the wall and the act of excavation.
    Appeal from circuit court, Hew York county.
    Action by Adeie Bernheimer against Thomas Kilpatrick for damages to a building, caused by excavations made by defendant on his adjoining lot to a deptli of more than 10 feet. Trial by jury, and verdict for plaintiff. From
    
      the judgment entered on the verdict and from the order denying his motion for a new trial defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      W. F. Mao Rae, for appellant. J. C. Smith, for respondent.
   Van Brunt, P. J.

This action was brought to recover damages sustained by the building 644 Madison avenue, resulting from the excavation of the lots adjoining by the defendant for the purpose of erecting his building, “The Hoffman Arms, ” at the corner of Madison avenue and Fifty-Hinth street. The single question presented seems to be whether, where an excavation is made for the purpose of putting up a new building to a depth of more than 10 feet below the curb adjoining a house already built, the builder of the new building will be liable for injuries suffered by the adjoining building, arising from the settlement of the foundations of the new building after completion carrying with it the foundation of the old. This question seems to be presented by the request to charge of the defendant, which request was refused. It is conceded that the plaintiff’s right to recover depends upon the construction of section 474 of chapter 410 of the Laws of 1882. That section provides as follows: “ Whenever excavations for building or other purposes, on any lot or piece of land in the city and county of Hew York, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary.license to enter on the adjoining land, and not otherwise, shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced. ” It is urged upon the part of the appellant that the only duty which the builder owed to the owner of the adjoining lots ceased at the completion of the excavation. It is clear that this construction cannot obtain, although it may accord strictly with the language upon which it is founded, because none of the evils which the act was intended to remedy under such a construction would be avoided. If the duty exists only from the commencement until the completion of the excavation, then, after the hole is dug, and completely dug, all duty towards the adjoining neighbor ceases, which clearly was not the intention of the act. Under such a construction, an adjoining owner could excavate to any depth that he might see ñt, and as long as he kept the foundation of the adjoining house as stable as it was before the excavation was commenced, while lie was in the act ot' digging, his duty would have ceased, because immediately upon his ceasing to excavate, his obligations to the adjoining owner would be fulfilled, and he would then have the right to take away the supports which he had put to the wall, and let it fall down if it would-do so. It is clear that the intention of the legislature went beyond this, and that the intention was to secure the adjoining owner against erections which went to a depth of more than 10 feet below the curb; and this intention is expressed by a subsequent provision of the statute, which compels the excavator to support the adjoining wall in such a way that it shall be preserved from injury, and shall remain as stable as before the excavations were commenced. Therefore it is a duty imposed upon the adjoining builder to so protect the adjoining wall, if he goes more than 10 feet below the level of the curb, that such wall shall not be injured by reason of the structure which he has put into the excavation after it is made, because the provision of the law is that the foundation of the adjoining house must be supported in such manner that it shall remain as stable as before the excavations were commenced. How, if by the erection of a heavy structure the weight of the wall carries down the foundation of the building already erected, it is evident that the party making the excavation- has not supported the wall of the adjacent house so that it remains as stable as before the excavation. The builder is bound, at his own expense, to preserve the wall from injury from the commencement of until the completion of such excavation, and then he has the further duty imposed upon him of so supporting the wall by proper foundations that it shall remain as stable as it was before. It is difficult to see, if he has a right to make the excavation, and by the settlement of the building which he erects to carry down the foundation from underneath the house adjoining, how he has fulfilled the obligation placed upon him by the statute, that the foundation of the adjoining house shall remain as stable as it was before. It was the intention of the legislature to protect houses that had a reasonably deep foundation from the incursions of those who desired to go down into the bowels of the earth in order to get additional stories for their buildings; and it has sought to protect adjacent owners from such a class of building by as explicit language as it was possible to employ. In other words, it has indicated its intention that, as the result of the excavation and the building thereon, the adjacent owner shall not be compelled to sustain any damage, if the excavation has been carried to a depth of more than 10 feet below the curb. The construction which is sought to be placed upon this act by the appellant would, it seems to us, absolutely defeat the purpose for which it was enacted. It would leave the adjacent owner, after an excavation had been concluded, absolutely at the mercy of the constructor of the new building.

There is another question to which attention is called by the points of the appellant, namely, that there was no direct connection between the injuries sustained by the plaintiff’s house and the construction of the building of the defendant. It seems to us that the evidence in this respect w as of such a character that the jury might safely infer that there was a very intimate connection between the two events. It was impossible to produce witnesses who could swear that they had seen the excavation, and had seen that as a result of the excavation the foundation of the adjoining house settled, and cracks appeared. We think that it is a reasonable conclusion that the jury might very well draw from showing that the house had been erected for a number of years; that it stood without settling; that an excavation to an immense depth was made along-side of it, and very shortly after the walls began to crack, and the house perceptibly settled towards the excavation. It hardly seems necessary to have any more definite proof in order to justify in finding a connection between the excavation and the settlement of the house in question. If our construction of the act un.ier which this action was brought is correct, it seems to us that the proof was ample to justify the jury in coming to the conclusion which they did.

We are of opinion that, the defendant having gone to more than 10 feet below the ground in his excavation, he became responsible to the owner of the adjoining house for any injuries which would result from the settlement of the foundation of the house he was erecting; he not having supported the walls of the adjacent house by a proper foundation, so that it remained as stable as before the excavations were commenced, the fact that he did not do so being established by the settlement, reasonably presumed to have been caused by his erection of his own building. The judgment affirmed, with costs. All concur.  