
    Matilda Leerburger, Appellant, v. Hennessey Realty Company and Joseph Polstein, Respondents.
    First Department,
    December 20, 1912.
    Beal property—lateral support—building code, city of New York, construed — excavation less than ten feet in depth adjoining lands not incumbered with building — excavator must erect retaining • wall — mandatory injunction'—conveyance pending suit for injunction — effect of lis pendens.
    At common law a landowner is entitled to lateral support for his land at its orí ginal surface; but if he burdens it with a structure the common law does not entitle him to ádjacent support therefor.
    That portion of section 33 of the building code of the city of New York relating to the support of adjacent buildings where a landowner excavates upon his own land more than ten feet below the curb line applies only where there -is an adjacent building to be shored up or protected, and does not apply where there is no structure upon the adjoining land.
    Where one. excavates upon his own land, and there is no burden upon the lands of an adjoining owner, he is required both at common law and under the' last clause of section' 33 of the building code of the city of New Ifork, which is declaratory of the common law, to build at his own expense a retaining wall to support the adjacent land even though the excavation is less than ten feet in depth.
    The lateral support which a person is required to give under the circumstances aforesaid is not furnished by a sheet iron fence one-eighth of an inch in thickness supported only by angle irons, and which in its nature cannot be permanent.
    A landowner so deprived of lateral support is entitled to a mandatory injunction requiring the adjacent owner to give such support although the land was conveyed subsequent to the excavation if a Us pendens was filed in the suit for an injunction, for under section 1671 of the Code of Civil Procedure the grantee was bound by all proceedings in the suit.
    Scott and Miller, JJ., dissented.
    Appeal by the plaintiff, Matilda Leerburger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of April, 1911, upon the decision of the court "rendered after a trial at the New York Special Term in an action brought for a mandatory injunction.
    
      Everett V. Abbot of counsel [Keith & Abbot, attorneys], for the appellant.
    
      H. B. Davis of counsel [Louis Sachs with him on the brief], for the respondents.
   Clarke, J.:

Plaintiff owned a lot on One Hundred and Thirteenth street on the front part of which -there was a building. Her back yard extended thirty-five feet from that building to the rear line of her lot, which remained at its natural surface. Defendant company, of which defendant Polstein was president.and principal owner, owned a lot on One Hundred and Twelfth street abutting on the back of plaintiff’s lot. On this lot it undertook to erect a building and in doing so excavated up to the plaintiff’s line. There is some dispute as to the depth of this excavation below the surface of plaintiff’s yard. The court found it to be about nine feet. Upon its own land defendant erected ' a retaining wall about three feet one inch high. It then went onto plaintiff’s land and erected a further wall, not upon the top of its own retaining wall, but on plaintiff’s ground, five feet nine and one-half inches high, up to the level of plaintiff’s yard.

This action was brought to enjoin: a continuing trespass, to compel the taking down of the wall on the plaintiff’s property and to compel the defendant to erect a proper retaining wall on its own property. During the progress of the litigation defendant took down the wall on plaintiff’s property. It thereafter erected on its own wall an iron fence of an eighth of an inch in thickness, supported by angle irons. The plaintiff continues the litigation, however, upon the ground that said fence is not a sufficient protection, that her land has already sunk six. inches, that the fence has rusted and is bulged out of shape, and that she is entitled to have a proper retaining wall built in its place.

The learned court, as it seems to us, misinterpreted section 22 of the building code. He held that no obligation rested on the defendant as the excavation was not ten feet in depth as therein provided. Plaintiff claims, and it seems justly, that said provision has no application here; that the requirement as to depth is the statutory provision in regard to excavations contiguous to walls and buildings. Under the common law a property owner was entitled to lateral support for his land at its original surface. (Farrand v. Marshall, 21 Barb. 409.) If he burdened his land with a- structure, however, the common law did not furnish a remedy. (Lasala v. Holbrook, 4 Paige, 168.) Therefore, the statute was enacted which provided that if an adjoining owner dug down more than ten feet he was required to protect his neighbor’s building from damage caused by the- excavation. (See New York Steam Co. v. Foundation Co., 123 App. Div. 254, 261, 261.)

• In the case at bar there is no building to be shored up or protected, and hence I do not think the ten-foot excavation provision applies. The case is governed by the common law and also by the last clause' of section 22 of the building code, declaratory of the common law, which provides: “When an excavation is made on any lot, the person or persons causing such excavation to be made shall build, at his or their own cost and expense, a retaining wall to support the adjoining earth; and such retaining wall shall be carried to the height of the adjoining earth, and he properly protected by coping. The thickness of a retaining wall at its base shall he in no case less than one-fourth of its height.”

, We think that plaintiff was entitled to this lateral support and that the sheet iron fence does not give it. It does .not seem, to be authorized. The permit from the building department for its erection was revoked. It cannot in its nature be permanent, and defendant ought to build up the wall it started to construct on its own land.

The further complication is suggested that since the action was commenced defendant has sold the property, and, therefore, that no order could be effective which required it to go upon the land of another person and build. The conclusive answer to that, it seems to us, is that notice of lis pendens was filed, and that the property was taken subject to and with notice of the pending action.

Section _ 1611 of the Code of Civil Procedure provides: * * * A person, whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is. bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action.”

We think that the eighth finding of fact should be reversed, that the judgment should be reversed, and judgment ordered for the plaintiff for the relief demanded, with costs and disbursements to the appellant.

Ingraham, P. J., and Laughlin, J., concurred; Scott and Miller, JJ., dissented. .

Judgment reversed and judgment ordered for plaintiff for the relief demanded, with costs and disbursements. Order to be settled on notice.  