
    George St. T. Seabrook, plaintiff and appellant, vs. John Hecker, defendant and respondent.
    1. In an action to recover damages for losses by injuries to tbe plaintiff, caused by the falling upon his house, of a wall and oven which was in the course of . erection by an adjoining owner, on his own premises, by reason of negligence ■and carelessness in their construction, evidence was given tending to show that the wall had been cracking and settling for some days; that it was apprehended that such wall would not stand until finished; that they were pointed with mortar several times while being erected; that the arches cracked; and the foundation was not good; that the building was not strong enough to bear the weight of the oven; that the walls settled; and the building was anchored on one side only, when it ought to have been anchored on both.
    
      Meld, that there being evidence tending to show want of skill, as well as negligence and want of care, in the erection, on the part of the defendant, which led to injury of the plaintiff in his person and property, the case should have been submitted to the jury on the question of fact; and that the complaint was improperly dismissed, on the trial, for want of proof of negligence.
    2. If negligence and want of skill in an erection are averred in the complaint and proved on the trial, in such a case, that is all that is requisite to entitle the plaintiff to recover; provided he shows damage resulting to him by reason thereof.
    (Before Bakboub, Monblu and Garvin, JJ.)
    HearjL March —, 1864;
    decided April 30, 1864
    This action was brought by the plaintiff, to recover damages for his losses and injuries, sustained by the falling of a wall in course of erection by order of the defendant. On the trial of the cause, before Justice Moncrief and a jury, December 8th and 9th, 1863, it appeared that the plaintiff and the defendant were formerly occupants of adjoining premises. The plaintiff resided with his family in a wooden building in the rear of No. 114 Monroe street, where he carried on cigar making. The defendant occupied No. 58 Rutgers street, where he had a bakery. Prior to November 10, 1862, the defendant had commenced the erection of a stack of ovens, of brick, upon his lot, the rear wall of which stood almost immediately adjoining rear wall of the plaintiff’s house. On that day, the defendant’s building being then nearly completed, the rear portion of it fell upon the house of the plaintiff, causing" the alleged injuries, ■ to recover for which the action was brought. The plaintiff, upon the trial, adduced evidence tending to show the nature of the injury and loss sustained by him. He also called witnesses who testified as to the manner in which the erection of the building was planned and executed, and the probable causes of its fall. On the conclusion of the plaintiff's evidence, the defendant moved to dismiss the complaint, on the ground that the evidence failed to show legal negligence on the part of the defendant. The presiding judge granted the motion, and the plaintiff excepted.
    The plaintiff moved for a new trial, and the motion being denied, he appealed from the order made thereon, and from the judgment.
    P. G. Clark, for the appellant.
    I. The respondent is, primarily and apart from any negligence, responsible for all injury and damage suffered by the appellant, through the falling of the ovens. (See Hay v. Cohoes Company, 3 Barb. 42. S. C. 2 N. Y. Rep. 159. Tremain v. Cohoes Company, Id. 163. Lambert v. Bessey, Raymond’s Rep. 421.)
    II. Upon the conceded.facts and the testimony on the part of the plaintiff, it appears clearly that the ovens in question were negligently erected, and that the negligence is directly attributable to the respondent.
    III. There was, undoubtedly, evidence to go to the jury, and the judgment should be reversed, and a new trial ordered.
    
      Benj. Vaughan Abbott and William Curtis Noyes, for the respondent.
    I. The defendant was not liable for. the consequences of the disaster, unless he was chargeable with negligence in respect to the erection of his building. 1. A case like the present must be carefully distinguished from the ordinary actions for damages grounded upon an unlawful act. Where the act is unlawful, as in actions for libel, for assault and battery, and for other torts, no question as to the manner in which it was performed, enters into the existence of the right of action. The principle that the defendant must be held to have intended the natural consequences of his acts, and is liable for the damages resulting immediately from what he did, applies without qualification, depending upon the care or diligence with which the act was done.
    2. But where the act was lawful, the defendant is not holden for its consequences, unless he is legally chargeable with some fault or omission in respect to the manner in which' it was planned or executed.
    3. The law does not award damages for the consequences of a lawful act, performed in a lawful manner ; nor for injuries which result from accident, or which could not be prevented by ordinary human care. (Clark v. Foot, 8 John. 421. Panton v. Holland, 17 id. 92, 99. Livingston v. Adams, 8 Cowen, 175. Harvey v. Dunlop, Hill and D. 193. Williams v. N. Y. Central R. R. Co., 18 Barb. 222, 247. Ellis v. Duncan, 21 id. 230. Radcliff v. Mayor, &c. of Brooklyn, 4 Comst. 196, 200. O’Connell v. Strong, Dudley’s S. Car. R. 265. Sullivan v. Scripture, 3 Allen, Mass. 564. Hoffman v. Tuolumne Water Co. 10 Cal. R. 413. Higgins v. Barmon, 1 Jur. 217. Morgan v. Symonds, 1 id. 137. Aston v. Heaven, 2 Esp. 533. Crofts v. Waterhouse, 11 Moore, 133. S. C. 3 Bing. 319. Davis v. Saunders, 2 Chit. 639.)
    4. In other words, it is necessary, in order to create a liability for damages, that there should have been either an unlawful act, or some breach or omission of duty in the manner of performing the act, if lawful. (Roulston v. Clark, 3 E. D. Smith, 366. Platt v. Johnson, 15 John. 213. Hentz v. Long Island R. R. Co. 13 Barb. 646. City of Buffalo v. Holloway, 3 Seld. 493, 496. Gilbert v. Beach, 4 Duer, 423 ; reversed on a question of practice, 16 N. Y. Rep. 606. See also Vandenburgh v. Truax, 4 Denio, 464, and Lasala v. Holbrook, 4 Paige, 169.)
    5. No man is answerable in damages for the reasonable exercise of a right, when it is accompanied by a cautious regard for the rights of others, when there is no just ground for the charge of negligence or unskilfulness, and when the act is not done maliciously. (Panton v. Holland, 17 John. 92, 99.)
    6. Comyn says, an action upon the case “ does not lie for a reasonable use of my right, though it be to the annoyance of another; as if a man build a house, and make cellars upon his soil, whereby a house newly built in an adjoining soil falls down.” (Citing 1 Sid. 167. 2 Rol. 565, l. 5. 1 Com. Dig. title action upon the case for nuisance, C.)
    
    7. In Livingston v. Adams, (8 Cowen, 175,) the defendants, had erected a dam, which broke away and carried off the plaintiffs ’s dam, situated below. It was shown, however, that the defendants’ dam was huilt on a proper model, and was well and substantially done, and- due precautions taken to prevent leakage. The court held that the defendants were not liable for the injury done by the dam breaking away ; and that it made no difference that there might be shown to have been negligence in a particular part of the structure, provided it appeared that the weakness of that part did not contribute to the accident. To the same effect, as to the first point is, Lapham v. Curtis, (5 Ver. R. 371,) cited in Angell on Watercourses, section 336.
    8. See the remarks of Judge Bronson, in delivering the opinion in the Court of Appeals, in Radcliffe v. Mayor, &c. of Brooklyn, (4 N. Y. Rep. 195, 200.)
    9. The rules of law which apply to cases of excavations made by a land owner upon his own land, illustrate the principle that either an unlawful act or an unlawful manner of doing an act must appear, in order to give a right to damages.
    
      (a.) If the excavation causes the natural soil of the adjoining owner to cave in, this is said to give the latter a right to damages, irrespective of the manner in which the work was' conducted. But the reason is, that each land owner has an absolute right to the lateral support of the adjoining natural soil for his own. An excavation, although wholly within one’s own land, which causes the soil of the adjoining owner to fall in is wrongful. (Farrand v. Marshall, 21 Barb. 409, and 
      
      cases cited. Foley v. Wyeth, 2 Allen, Mass. 131. See also Brown v. Robins, 4 Hurlst. & N. 186.)
    (6.) But if the injury caused by an excavation consists in the fall of buildings erected on the adjoining land, no such right to recover arises, unless upon proof of some neglect or breach of duty in the manner of excavating. For in the excavation itself no right of the adjoining proprietor is invaded. It was his own fault to build so near the dividing line that his improvement could' not be supported without the aid of the adjacent owner to desist or refrain from improving his own, for his benefit or security. (Bellows v. Sackett, 15 Barb. 96, 101. Panton v. Holland, 17 John. 92. Lasala v. Holbrook, 4 Paige, 169. Partridge v. Scott, 3 Mees. & W. 220, 228. Acton v. Blundell, 12 id. 352. Wyatt v. Harrison, 3 Barn. & Adolph. 871. Gayford v. Nicholls, 9 Exch. 702; S. C. 23 Law J. Exch. 205. Thurston v. Hancock, 12 Mass. R. 220, Foley v. Wyeth, 2 Allen, Mass. 131.)
    (c.) So, also, a landowner may make an excavatioñ upon his land, not immediately adjoining a public highway, and although he does not fence or guard it, is not liable, in general, to one who strays upon the land, and falls into such evcavation. (Hardcastle v. South Yorkshire Railway Co., 4 Hurlst. & N. 67. Howland v. Vincent, 10 Metc. 371. See also Cornwall v. Commissioners of Sewers, 30 Eng. L. & Eq. 548.)
    10. The rules which relate to the interruption of watercourses, furnish another illustration of the rule, that an unlawful act or unlawful manner of doing an act is necessary to raise a right to damages.
    
      (a.) The diversion of a stream of water,- by a proprietor of land over which it flows, to the injury of a proprietor below him, is said to be a good cause of action, irrespective of the necessity for doing it, or manner in which it was done. But this is because the lower proprietor has an absolute right to the use of the stream in his turn; hence the diversion is wrongful in itself. (Van Hoesen v. Coventry, 10 Barb. 518, and cases there cited. Newhall v. Ireson, 8 Cush. 595.)
    
      (b.) If, however, the facts proved do not amount to a diver
      
      sion oí the stream, but only to a use of it, the question then is as to the manner in which the upper proprietor used the water. The right of the lower proprietor to any redress depends upon his showing some fault or neglect of reasonable precaution on the part of the proprietor above, in the use of the stream. (Thomas v. Brackney, 17 Barb. 654.)
    
      (c.) So, also, the interruption of the underground sources of supply of water to a stream running through a neighbor’s land, or by digging ditches upon one’s own land, violates no absolute right of the neighboring proprietor, and therefore is no ground of action. (Ellis v. Duncan, 21 Barb. 230.)
    II. In a case like the present, in which the enterprise undertaken by the defendant is an ordinary use of his own property in the prosecution of a private business, involving no unusual peril or interference with the convenience of others, negligence consists in the omission of some precaution or care which a discreet and prudent man would usually exercise, in like circumstances, when the risk was wholly upon him. (Rochester White Lead Company v. City of Rochester, 3 Comst. 463. Mayor, &c. v. Bailey, 2 Denio, 433, 440. Vanderpool v. Husson, 28 Barb. 196. Congreve v. Morgan, 4 Duer, 439, 445. Vaughn v. Menlove, 3 Bing. New. Cas. 468. Cuyzer v. Taylor, 10 Gray, 274, 280. Sullivan v. Scripture, 3 Allen, Mass. 564. Durant v. Palmer, 5 Dutcher, 544, 547. Central R. R. Co. v. Moore, 4 Zabr. 824. Hoffman v. Tuolumne County Water Co., 10 Cal. R. 413. Wolf v. St. Louis Independent Water Co., Id. 541. Indiana Central Railroad Co. v. Hudelson, 13 Ind. R. 325, 329.)
    1. It would be an error to suppose that the rule of duty imposed by law in respect to the care to be taken in the management of one’s property, is the same in all the various enterprises undertaken. The general rule applying in ordinary cases is that above stated; that the party must take those precautions which a prudent man would ordinarily take under like circumstances. There are, however, cases in which, from special reasons, the law imposes upon the projector of an enterprise, a higher rule of duty or responsibility than this. These cases furnish no rule for determining the present one.
    2. Oases in which the act sued for amounted to a nuisance, require to be distinguished from the present. In that class of cases, although the thing done may be innocent in itself considered, it becomes unlawful by reason of its tendency, under the circumstances, to obstruct some public right, or create some annovqpce or disturbance to the comfort or peace of the neighborhood. It being thus unlawful, the party doing it is held responsible in damages, irrespective of his care or prudence in performing it. If he undertakes to do that which the law, foreseeing its. evil tendency under the circumstances forbids, he must be answerable for the injuries occasioned by his act. But this forms no real exception to the rule already commented upon ; the act being unlawful, not indeed in itself, but under the circumstances. A number of decisions are found in which the defendant has been held liable for damages, irrespective of his care or prudence, on the ground that his act was a nuisance.
    (a,.) See a case where a railroad company, by running cars and engines, ringing bells, &c. during public worship, disturbed and annoyed the congregation. (First Baptist Church v. Schenectady and Troy R. R. Co., 5 Barb. 79.) But the contrary view was, taken in First Baptist Church in Schenectady v. Schenectady and Troy R. R. Co., (6 Barb. 313.)
    (6.) Also cases where the defendant excavated or obstructed a highway without authority of law. (Congreve v. Smith, 18 N. Y. Rep. 79. Dygert v. Schenck, 23 Wend. 446. Ellis v. Sheffield Gas Consumer’s Co., 2 El. & B. 767. 18 Jur. 146. 23 Law J. (2 B.) 42. 22 Eng. L. and Eq. 198.)
    (c.) Also a case where a gas company suffered noxious and offensive substances to flow from their gas works into a stream, by which they were carried down upon the lands of the plaintiff below. (Carhart v. Auburn Gaslight Co., 22 Barb. 297.)
    
      (d.) The case of Hay v. Cohoes Company, (2 N. Y. Rep. 159,) was cited by the plaintiff upon, the argument of the motion to dismiss the complaint, as an authority for the position that the defendant was under • an absolute duty to make his, building strong enough to stand. That case really rests upon the ground that the acts intended by the defendants were a nuisance. It appears from, the report in 3 Barb. 42, that the facts were very different from a simple accident, The acts complained of were : 1. Cutting a canal across the street on which the plaintiff's house stood, and keeping it open for five months, obstructing his passage ; and 2, a practice of blasting rocks on land adjoining his, maintained from day to day, without adequate precaution to avoid injury, and in spite of injury happening. The case rests on the special responsibility imposed on the author of a nuisance, and is inapplicable to the present.
    3. There is a class of cases in which it is held that a carrier of passengers is under an absolute duty to provide a safe vehicle. If an accident happens from a defect in the carriage, he is liable, notwithstanding it" was well made, and of good materials, and careful servants were employed, and a prudent examination made. (Sharp v. Gray, 9 Bing. 457. 2 Moore & S. 621. Bremmer v. Williams, 1 Carr. & P. 414. Israel v. Clark, 4 Esp. 259.)
    4. In certain cases in which the enterprise or business undertaken by the .defendant is one of unusual peril or danger to the community, the rule of duty imposed is not limited to taking ordinary care, but extends to requiring extreme care, or all the precautions of which the nature of the case admits.
    
      (a,.) See cases where the defendants were engaged in selling or managing dangerous drugs. (Thomas v. Winchester, 2 Seld. 397. Tarrant v. Barnes, 11 C. B. 1 N. S. 553. 8 Jur. N. S. 868. 31 Law J. [C. P.] 137.)
    (b.) Also cases where the defendants were engaged in management of locomotives, steam engines, &c. (Fero v. Buffalo and State Line R. R. Co., 22 N. Y. Rep. 209. Hinds v. Barton, 25 id. 544. Cagger v. Taylor, 10 Gray, 274.)
    5. The grantee of a monopoly or franchise, of an exclusive-nature, has in some cases been deemed to hold the privilege, not upon a mere duty of prudence in the exercise of his right, but upon an absolute duty to exei'cise it in such a manner as not to injure others. Where this is seen to be the condition of his tenure, he will be held liable for injuries done, irrespective of the question whether he is chargeable with negligence. (See decision in Court of Errors, in Brown v. Mohawk and Hudson R. R.Co., How. App. Cas. 52, 65, 76 ; Robinson v. N. Y. & Erie R. R. Co., 27 Barb. 512.)
    6. The instances above cited are far from being all in which, for special reasons, the law imposes a special rule of duty or liability upon those who undertake an enterprise. But they are enough to show that the liability for damages in these cases rests upon the special duty and its violation. The present case presents no facts which raise any peculiar obligation. The defendant undertook to erect, upon his own land, a building for the purposes of a lawful business. What he intended and endeavored to do, and to procure to be done, was not a nuisance, nor an enterprise causing any unusual peril to the surrounding community, nor did it involve any peculiar reasons for responsibility. The ordinary rule of duty applies.
    7. The general rule as to what constitutes negligence was stated with great accuracy, by Justice Moncrief, at the trial, in assigning his reasons for granting the motion to nonsuit. It is " a violation of the obligation, which enjoins upon us due caution and care .in what we do. If the defendant selected competent and skillful persons to perform the work he wanted done, and if in the performance of that work they employed proper assistance and used the right kind of materials, then there was no violation of the obligation resting upon him.” (Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 266 ; Aff’d 4 Comst. 349. Carroll v. N. Y. and N. H. R. R. Co., 1 Duer, 571, 583 ; and 11 N. Y. Leg. Obs. 114. Congreve v. Morgan, 4 Duer, 439, 446. Ernst v. Hudson River R. R. Co., 24 How. Pr. 97.)
    III. The burden of proof to show negligence, was upon the plaintiff.
    1. Negligence being an essential fact to sustain the action, the duty to prove it affirmatively was upon the plaintiff. He could not ask the court to infer it, nor could he call upon the defendant to show himself free from negligence. (Congreve v. 
      Morgan, 4 Duer, 439. Terry v. N. Y. Central R. R. Co., 22 Barb. 574. De Benedetti v. Manchin, 1 Hilt 213. Holbrook v. Utica and Schenectady R. R. Co., 12 N. Y. Rep. 236. Lehman v. City of Brooklyn, 29 Barb. 234. Indianapolis and Cincinnati R. R. Co. v. Means, 14 Ind. Rep. 30.)
    2. The presumption is, in respect to the acts of a party-prosecuting a lawful enterprise, and whose motives are not impeached, that all his acts in the prosecution of his design were performed with ordinary care. Negligence will not be presumed. (Lansing v. Stone, 37 Barb. 15. Abb. Pr. 199. Aldridge v. Great Western R. R. Co., 3 Mann. & Gr. 515. 4 Scott, N. R. 156.)
    3. The rule which has sometimes been suggested, that negligence is to be inferred from the mere occurrence of the disaster, has always been confined to actions against common carriers. (Terry v. N. Y. Central R. R. Co., 22 Barb. 574. Edgerton v. N. Y. and Harlem R. R. Co., 35 id. 389,)
    4. In ordinary cases, evidence of the mere happening of an accident is not enough to be left to the jury ; the plaintiff must give affirmative evidence to show the defendant’s negligence, or be nonsuited. (Hammock v. White, 11 Com. B. N. S. 588. 8 Jur. N. S. 796. 31 Law J., C. P. 129. 10 Weekly Rep. 230. 5 Law J., A. S. 676.)
    5. And to warrant a case being left to the jury, it is not enough that there may be some evidence of negligence ; a mere scintilla of evidence is not sufficient; but there must be proof of well defined negligence. (Toomey v. London and Brighton Railway Co., 3 Com. B., N. S. 146. 27 Law J., N. S., C. P. 39. Cornman v. Eastern Counties Railway Co., 4 Hurlst. & N. 781. 29 Law J., N. S., Exch. 94.)
    IY. The rule of evidence in these cases is that the defendant’s acts must be judged in the light of the circumstances under which he acted.
    1. It does not follow that because the jury, looking back at the circumstances of an accident, can see that some course of' conduct or precaution would have prevented it, therefore the defendant is liable for having failed to pursue that course, or for having omitted that precaution. To charge him, it should appear affirmatively that a prudent and cautious man, before the accident, and without the knowledge that it was about to occur, might have foreseen the danger, and provided adequate security against it. (Bowen v. N. Y. Central R. R. Co., 18 N. Y. Rep. 408.)
    2. There is no great difficulty in suggesting precautionary methods after the calamity has happened. The question is whether they ought to have occurred to the party before. (Per Nelson, Ch. J. in Brown v. Mohawk & Hudson R. R. Co., How. App. Cas. 52, 65.)
    Y. The evidence adduced by the plaintiff wholly failed to show that the defendant did not do, or cause to be done, all that a discreet and prudent man would ordinarily do in the erection of such a structure. There was no proof of carelessness or negligence on the part of the defendant; and, on the contrary, the evidence established sufficient care on his part, in selecting persons to do the work, in directing how it should be done, and in the choice of materials.
    1. It appeared that the defendant was the owner of a stack of ovens previously erected upon the same premises, under the superintendence of the same master mason, and which had stood safely. The new building was put up alongside this ; one of the new walls standing immediately against the wall of the old building, and the other new wall standing against the wall of a neighboring building occupied by one Briggs. The defendant directed the new building to be put up the same as the old one. This displays ample care and precaution in the plan or model adopted. As the old building had stood for years, without support from an adjoining wall, the defendant was justified in supposing that a new one supported by adjoining buildings on both sides, if built in the same manner with the old one, would stand.
    2. The defendant selected experienced and skillful persons to superintend and perform the work. The defendant's workmen are the plaintiff's experts ; and their capacity as well as integrity is vouched for by calling them as witnesses.
    
      3. The defendant furnished good materials for the work.
    
      4. The foundation was well built, upon suitable ground, and was found to be good on examination after the accident.
    5. The defendant is not chargeable with any inattention to the progress of the work. He attended at the premises daily, usually several times a day.
    6. The defendant is not chargeable with any undue or improper interference with the work as it proceeded. His directions in respect to it were confined to the expression of his desire that the men should make a good job ; that they should take time enough to do every thing well; and that they should make the new building like the old one.
    7. The building, while in course of erection, was inspected by the public officer appointed to inspect buildings in the city of Hew York, and no objection was suggested to the work. A prudent man would ordinarily rely on an official inspection of such character, as confirming the sufficiency of his precautions.
    8. There can be no doubt that the true cause of the disaster was the- unequal shrinking of the walls, in drying; arising from the fact that the wall on the side of the old building was dried rapidly by the heat of the ovens, while the opposite wall (next Briggs) was retarded in drying by wet weather. But this was a danger which all the witnesses agree was not fore-r seen, and it could not have been. The erection of a brick wall alongside of heated ovens, arising to the fourth story, must be too unusual to render it reasonable to expect that the defendant should have anticipated the effect.
    9. The only two grounds alleged by the counsel for the plaintiff, at the trial, in support of the charge of negligence viz : the adoption of a segment of a circle instead of a half circle for the arches on which the ovens rested ; and the omis* sion to insert tie-rods across the building; are untenable. As to the form of the arch, the defendant’s direction was to make the new building like the old one, This was a prudent plan, as has already been remarked. To charge him with negligence in respect to the adoption of a segment arch, it was necessary to show either that he had actual notice that the workmen were departing from the form of arch employed in the old building, or that the position of the arches was so conspicuous, and the difference between a half circle and the form of segment adopted, arid the danger of the departure, was so obvious that a person not specially conversant with mason work would have detected the error by such inspection as the defendant was accustomed to make. There was no scintilla of evidence to either point. In respect to the omission to insert tie-rods; (a.) There is no evidence that they were requisite. Tie-rods were inserted in the direction in which the building fell. The wall that fell was held by tie-rods. The object of inserting tie-rods across would only have been to sustain the side wall in case the support it received from the Briggs wall was insufficient. As toward Seabrook the tie-rods omitted were unnecessary, and there is no proof that the omission could have contributed to the accident.
    
      (b.) If it were conceded that inserting tie-rods across the building would have been a useful precaution against the fall of the rear wall, still this is not enough to charge the defendant. The plaintiff was bound to prove it to have been a practicable precaution under the circumstances, It is obvious that the anchors could not have been screwed on between the side wall and the Briggs wall. The only method possible suggested was that of drilling through the Briggs wall from the interior of his building. The plaintiff should have given some evidence that the structure of the Rriggs building was such that this could have been done, and that the defendant might, by reasonable endeavor, have obtained a license to do this. The court will not presume that the owner would have permitted his wall to be drilled through for such a purpose ; nor even that he was within the city, or otherwise within reach of an application by the defendant.
    VI. As the evidence showed that the defendant was free from fault, a verdict for the plaintiff would have been set aside. See Weldon v. Harlem R. R. Co., (5 Bosw. 376,) where a verdict against a railroad company, in an action for negligence of their driver in the management of a team of horses, in taking it through a public street after it had been detached from a car it had been drawing, was set aside, the testimony being uncontradicted, that the manner in which the team was managed was such as had been pursued by this and other similar companies for years without accident, and was considered by those engaged in such business as safe and discreet. See also, Scott v. Mayor, &c. of Manchester, (38 Eng. L. &. Eg. 477,) where it appeared that the defendants had, through their manager, ordered a certain work to be done to their gas pipes ; and that he had employed a conrpetent party of workmen to do the work; in the course of which one of the workmen was chipping a pipe, and a chip flew off and struck the plaintiff in the eye, and blinded him. It had been suggested to the manager that a screen ought to be erected, and after the accident this was done. A verdict for the plaintiff was set aside for want of proof of negligence on the part of the defendants. It was held that they must be presumed to have given orders to have the work done in a proper way; and that it did not appear that putting up a screen was the only way to avoid accident.
    See also the following cases in which, in actions for negligence, verdicts for the plaintiff have been set aside, or non-suits have been sustained, upon the ground that the circumstances proved did not amount to sufficient evidence of negligence to go to the jury. (Cotton v. Wood, 39 Law J. [C. P.] 333, 8 Com. B., N. S. Cornman v. Eastern Counties Railway Co., 4 Hurlst. and N. 781. 29 Law J., N. S., Exch. 94. Karl v. Maillard, 3 Bosw. 591. Latch v. Rummer Railway Co., 27 Law J., Exch. 155.)
    VII. The rule is well settled, that whenever the evidence adduced by the plaintiff is such that a verdict in his favor would be liable to be set aside, it is the duty of the court to direct a nonsuit. (Ernst v. Hudson River R. R. Co., 24 How. Pr. 97. Stuart v. Simpson, 1 Wend. 378. Pratt v. Hull, 13 John. 334. Demyer v. Souzer, 6 Wend. 436. Wilson v. Williams, 14 id. 146. Doane v. Eddy, 16 id. 523. Carpenter v. Smith, 10 Barb. 663. Moore v. Westervelt, 2 Duer, 59.)
   By the Court,

Garvin, J.

This action is brought to recover damages for losses sustained by the .plaintiff, and injuries received by him, in consequence of the falling of a wall and ovens being erected by the defendant. It is claimed and alleged by the plaintiff, that the erection was carelessly and negligently put up, and also to have been done in an unskillful and insecure manner.

Upon the trial, it appeared that on the 10th of November, 1862, the defendant was the owner of the lot and buildings, No. 58 Rutgers street, New York city, and that on that day, and previously thereto, the defendant had been erecting the stack of ovens on the rear of said lot, which stack was .not entirely completed ; that the erection fell and crushed in the house of the plaintiff, killing one of his children, and greatly injuring him, whereby the plaintiff suffered great personal and pecuniary damages ; that the erection went on under the defendant’s own personal supervision, and that the defendant gave directions in regard to the erection.

There was evidence given upon the trial, tending to show that the wall had been cracking and settling for about a week, and that there was an apprehension the walls would not stand till they were completed ; that the walls were pointed several times while in the course of construction; that the arches cracked; that the foundation was not good; and that the building was not strong enough to bear the weight of the ovens ; that the walls settled ; that the arches ought to have been a full half circle arch; that the building was only anchored one way ; that it ought to have been anchored both ways.

The justice who tried this case dismissed the complaint on the gro.und that no legal negligence was shown on the part of the defendant in the erection of the building in question; to which ruling the plaintiff excepted.

It can make no difference in this case, whether this action is regarded as an action upon the case for negligence and unskillfulness in the construction and putting up of the walls upon which the ovens were to stand, whereby the structure fell and caused the injury complained of, or as an action of trespass to recover for the damages set forth in the complaint. There being some evidence that the defendant directed the work, and supervised it, trespass would lie. (Hay v. The Cohoes Company, 3 Bart. 48, and cases there cited.) At least, the question should have been put to the jury on the facts, to say whether or not the defendant negligently and unskillfully constructed the work complained of.

In this case, negligence and want of skill in the erection was averred in the complaint, and proved upon the trial, which is all any of the oases I have been able to find require, to entitle' the plaintiff to recover, provided he shows that any damage resulted to him by reason thereof. This is well settled, upon authority. (Hay v. The Cohoes Company, 2 N. Y. Rep. 159.) A man who exercises proper care and skill “may do what he will with his own property, but he cannot rightfully enter or cast any thing on the land of another, unless he have a license from the owner, or an authority in law for doing the act; and the absence of a bad motive will not save him. (Radcliff’s Executors v. Mayor, &c. of Brooklyn, 4 N. Y. Rep. 199.) If, in cutting thorns, or in lopping a tree, the boughs fall, against his will, on his neighbor’s land, from which he removes them as soon as possible, he is a trespasser. Or if, in building his house, a piece of timber faff on the house of his neighbor, an action lies.

There is also a class of cases where a man must answer for the consequences of doing a lawful act in so negligent or unskillful a manner as to cause an injury to another, as in the case of Vaughan v. Menlove, (3 Bing. N. C. 468,) which is an extreme case. The defendant was held liable for so unskillfully constructing a hay-rick, that spontaneous ignition followed, and burned up the plaintiff’s cottage, which stood near by. Also where public officers constructed a culvert, to pass a stream of water, so unskillfully that it choked up, and thus caused injury to another. It was held they must answer in damages. (3 N. Y. Rep. 463.)

It is a general rule, and well settled upon authority, that a man must so use and enjoy his own property as not to injure the property of another. But it is also well settled that an act done under lawful authority, and in a proper manner, can never subject the party to an action, whatever the consequences may be. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care and still on his part. (4 N. Y. Rep. 200.)

No question arises here in regard to fault or negligence on the part of the plaintiff. There was'evidence tending to show want of still in the erection, and negligence and want of care therein, on tibe part of the defendant, by which the plaintiff was injured in his person and property. These principles are. all stated and approved by the Court of Appeals in Radcliff’s Executors v. Mayor of Brooklyn, (4 N. Y. Rep. 195.) Their application to this case is apparent. We think the case should have been submitted to the jury on the question of fact.

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