
    DORRITY v. RAPP.
    
      Court of Appeals;
    
    January, 1878.
    Adjoining Ownebs.—Constbdction of L. 1855, c. 6.—Contbactob. —Excavations in New Yobk City and Bbooklyn.
    By the common law the owner of land in making an excavation on his own premises is bound to use reasonable care, and is liable for consequent injuries to his neighbor’s property resulting from his negligence; but he is not obliged to shore up his neighbor’s house, nor give him notice of his intention to excavate.
    
    The legislature in this State, by L. 1855, c. 6, has afforded to owners of buildings in the cities of New York and Brooklyn, a new protection against injuries from excavations on adjoining lands, more than ten feet below the curb of the street.
    
    But in order to avail himself of such protection, he must grant to the owner making the excavation, if requested by him, permission to enter upon his premises to support his wall.
    Unless the owner excavating asks for such permission of the adjoining owner, the failure of the latter to grant it will not free the former from liability.
    That the excavation was made by a contractor does not free the owner from liability.
    Appeal from an order granting a new trial.
    Mrs. Sarah M. Dorrity brought this action against Augustus L. Rapp, to recover damages for injuries to a house belonging to her, alleged to have been caused by excavations made by him on his adjoining lot, situated on the southerly side of Thirty-second street, between Second and Third avenues, in the city of New York, for the purpose of sinking a cellar, and re-building the cellar wall under his house. The two houses had been erected with basements, but without cellars, and had independent walls.
    
      The defendant made a written contract with one Sullivan, a mason, to excavate and construct the walls at a fixed price, in which he agreed “ to make perfect all walls or partitions disturbed or injured by the aforesaid alterations, and to make good all damages caused by the same, and to furnish all materials and labor.”
    In carrying out the contract it was necessary to excavate below the existing foundation wall of defendant’s house, and more than ten feet below the street curb. This caused the wall of Mrs. Dorrity’s house to settle and injured it greatly.
    The defendant gave no notice of the intended excavation to either Mrs. Dorrity or her tenant, and she did not know of it until after the injury was done. Neither the defendant or the contractor requested a license or permission of Mrs. Dorrity to enter upon her premises for the purpose of protecting them from injury.
    The case was tried before Mr. Justice Larremore and a jury, and there was a verdict for the plaintiff for $1,000.
    After the verdict and before judgment, Mrs. Dorrity died, and the action was thereafter revived in the name of Farrell Dorrity, as her executor.
    The defendant appealed to the general term for the first department, and a new trial was ordered. The plaintiff, having stipulated that in the event of the affirmance of the order granting a new trial, judgment absolute might be rendered against him in favor of the defendant, appealed to this court.
    
      Joseph Fettretch, for appellant,
    Cited, as to admission of evidence : Thompson v. Hall, 45 Barb. 216; Smith v. Gugerty, 4 Id. 614, 625; Terpening v. Corn Exchange Ins. Co., 43 N. Y. 282; Speckerman v. Clark, 9 Hun, 133; Koenig v. Globe Mutual Life Ins. Co., 10 Id. 558; Clare v. National City Bank, 1 Sweeney, 539. As to construction of law of 1855 : Sherman v. Seaman, 2 Bosw. 127; Bigsby v. Warden, 62 N. Y. 28. As to responsibility of defendant notwithstanding the work was done by a contractor: Storrs v. City of Utica, 17 N. Y. 108; McCamus v. Citizens’ Gas Light Co., 40 Barb. 381; Partridge v. Gilbert, 15 N. Y. 612; Cook v. Pres., &c. Floating Dry Dock Co., 1 Hilt. 443; Creed v. Hartmann, 29 N. Y. 595; McCafferty v. S. D. & P. M. R. R. Co., 61 Id. 178.
    
      Alex. Thain, for respondent, cited,
    As to the rule of respondeat superior: Wharton on Negligence, § 818 and cases cited ; McCafferty v. Spuyten Duyvil, &c. R,. R. Co., 61 N. Y. 178; Blake v. Ferris, 5 Id. 48; Kelly v. The Mayor, 11 Id. 432; King v. Livermore, 9 Hun, 298, affi’d in Ct. of App.; Butler v. Hunter, 10 Wend. 214; Daniels v. Metropolitan Railway, 20 Id. 41. As to construction of law of 1855: Sherwood v. Seaman, 2 Bosw. 127; 2 R. S. (5 ed.) p. 1002, § 34; 2 Washb. Real Prop. 75; Washb. on Easements, 542-564; Panton v. Holland, 17 Johns. 92; Farrand v. Marshall, 21 Barb. 409; S. C., 19 Barb. 380; Thurston v. Hancock, 12 Mass. 221; Radcliff v. Mayor, &c. of Brooklyn, 4 N. Y. 201.
    
      
       Compare Gilmore v. Driscoll, 23 Am. R. 312; S. C., 122 Mass. 199.
    
    
      
       Where the wall runs from one street to another having curbs at a different elevation, I understand that it is the usage of architects and builders to measure from a mean level; but am not aware of any adjudication supporting this view.
    
   Andrews, J.

The plaintiff’s testatrix, and the defendant in 1872,.were respectively owners of adjoining houses and lots, in the city of New York. In March of that year, the defendant, desiring to deepen the cellar of his house, and rebuild the cellar walls, made a contract with one Sullivan to furnish the materials and perform the work. The plan of the improvements made it necessary to excavate below the existing foundation wall of the defendant’s house, and more than ten feet below the street curb.

The foundation wall of the house of the plaintiff’s testatrix extended about ten feet below the surface of her lot. The excavation made by the defendant caused the wall of the plaintiff’s testatrix to settle, and this action is brought to recover for this injury. The defendant gave no notice to the plaintiff’s testatrix, or to her tenant, of his intention to deepen the foundations of his house, and she had no knowledge that they had been deepened, until after the injury was done. Neither the defendant nor Sullivan requested license or permission to enter upon the premises of the testatrix for the purpose of protecting them from injury.

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 which 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 material right of support, as between the owners of contiguous lands, exists in respect of lands only, and not in respect of buildings, or erections thereon (Panton v. Holland, 17 Johns. 92; Thurston v. Hancock, 12 Mass. 221; Humphrey v. Boyden, 12 Q. B. 139; Goddard on Easements, 31). The owner of land, however, in making an excavation on his own premises, which may endanger a building on his neighbor’s land, is bound to use reasonable care in the prosecution of the work, and is liable for consequent injuries to his neighbor’s property resulting from his negligence (Panton v. Holland, supra; Dodd v. Holmes, 1 Add. & El. 493; Foley Wyeth, 2 Allen, 131). But he is under no obligation to shore up his neighbor’s house, nor is there any duty arising from contiguity merely that he should give his neighbor notice of his intention to excavate on his own premises (2 Washb. on Easements, 444; Trower v. Chadwick, 3 Bing. N. C. 34; S. C., 4 Id. 1). This being the state of the common law upon the subject, the legislature in 1855, interposed to regulate the exercise by owners of land in the cities of New York and Brooklyn, of the right of excavation, and to afford to owners of buildings a new protection against injuries from excavations on adjoining lands. By the act, chapter 6, of the laws of that year, it is declared that whenever excavations on any lot in New York or Brooklyn, “ 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 excavation, 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 such excavations were commenced.”

The general term reversed the judgment in this action, on the ground that no license or permission to enter upon the premises of the plaintiff’s testatrix, to protect the wall of her house, was tendered by her to the defendant before the excavation was made, and that, by the true interpretation of the statute of 1855, no liability to protect the wall of an adjoining owner attaches to a person making an excavation on his own premises, until such license is tendered, and that it was not incumbent upon the latter to request permission to enter upon the adjoining land to protect his building. The words “if afforded the necessary license to enter on the adjoining land,” do not, we think, in view of the object of the statute, require this construction. The primary object of the statute was to cast upon the party making an excavation on 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 liability imposed is not made to depend upon the degree of care exercised by the person making the excavation. When the facts bring the case within the statute, the duty and liability which the statute imposes is absolute and unqualified. The proviso, “if afforded the necessary license,” &c., was, we think, inserted simply to meet the contingency of a refusal by the owner of the adjoining building to allow the 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. The words “necessary license” indicate that this fact was in the minds of the legislature when the act was passed.

We think it would not be a reasonable construction of this clause, that the owner of a building must become an actor in the first instance, and tender a license to the adjoining owner to enter upon his premises, in order to give him the benefit of the statute. He may not know that an excavation is to be made, and if he knows the fact he may not know that it is to be carried beyond the depth mentioned in the statute. If it is not, then both parties stand upon their rights as at common law. This construction also would enable a party to escape the liability imposed by the statute whenever, from the situation of the property or other circumstances, the excavation could be carried on without attracting the attention of the adjacent owner.

The words, “if afforded the necessary license,” &c., do not necessarily imply a license proffered without an application or request of the person receiving it; and the words, “ not otherwise,” merely emphasize the intention of the act, that unless permission to enter upon the adjacent land is given, the obligations imposed by the act do not attach.

The defendant caused the excavation to be made, within the meaning of the act. The fact that he made a contract with Sullivan to do the work did not exempt him as the owner of the premises from the performance of the duty imposed by statute upon the party “causing the excavation to be made.”

The contract with Sullivan moreover made no reference to the statute of 1855, and the clause which required him “ to make perfect all walls or partitions disturbed or injured” by the alterations, and “to make good all damages caused by the same” refers to injuries and damages to the house of the defendant, resulting from the work done under the contract.

The exception to the ruling of the court, excluding the conversation between the defendant and Thomas Dorrity, was obviated by the fact that the witness was subsequently allowed to state the conversation.

The order of the general term should be reversed, and the judgment on the verdict affirmed, with costs.

Allen, Rapallo and Earl, JJ., concur.

Church, Ch. J., Folgee and Miller, JJ., dissent.  