
    Charlotte Steeneck, Respondent, v. The O’Leary Realty and Construction Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1913.)
    Adjoining owners — in general — right to lateral support and right to make excavations — action to recover damages for injury to retaining wall.
    At common law the owner of land is entitled to the lateral support of his neighbor’s land only for the soil in its natural state and not for structures imposed thereon by him.
    If his' neighbor excavates in such a manner that without the superimposed structure the land would not have caved in, he is not, in the absence of negligence, liable for injury to structures upon the land due to his excavation, and is under no duty to shore up and protect his neighbor’s property.
    Where, in an action to recover damages for injury to a retaining wall built at the intersection of plaintiff’s property and defendant’s vacant lot, the evidence is insufficient to justify a finding that defendant in excavating within two feet of plaintiff’s line and to a depth of two feet, after notice to plaintiff of its intention to excavate for the purpose of building, was guilty of negligence, but the testimony leads strongly to the conclusion that the falling of the wall ivas due to the fact that it was a dry wall and improperly and unskillfully constructed, a judgment rendered in plaintiff’s favor, after a trial by the court without a jury, must be reversed, and the complaint dismissed.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, rendered in favor of the plaintiff after a trial by the court without a jury.
    Charles Green Smith (John Davis, of counsel), for appellant..
    Samuel Goldstein (Louis Susman, of counsel), for respondent.
   Page, J.

The action is brougivt to recover damages for injury to a retaining wall built at the intersection of the plaintiff’s and defendant’s property. The grade of the plaintiff’s property is a number of feet higher than that of the defendant’s and at the rear yard where the lots adjoin there is a dry well resting upon the top soil. The space between the wall and the side of a slope on plaintiff’s premises is filled in with rock and earth. The defendant’s lot was vacant and it notified the plaintiff of its intention to excavate upon it for the purpose of building thereon. Nothing was done to strengthen the wall and after the defendant had excavated to a depth of about two feet, keeping entirely upon its own land and within eighteen inches or two feet of the wall, the wall gave way and with it the rock and earth which it held back.

An attempt was made to bring the case within section 22 of the building code but the learned trial justice properly held that it had no application to the facts of this case since the lots were abutting upon different streets, the grade of the plaintiff’s street being about twenty feet higher than that of the street upon which the defendant’s lot abutted, and the defendant did not excavate as far down as the level of its own curb.

The ground upon which the trial justice in his opinion states that he gave judgment for the plaintiff is that “ it appeared upon the trial by the testimony of the building inspector that the defendant excavated so as to undermine the wall in question and made no effort to shore or retain plaintiff’s soil or wall and that the wall and part of the soil fell into the excavation; and this alone, to my mind, was negligence for- which the plaintiff is entitled to recover.” An examination of the record does not substantiate this statement of facts. It is true that Mr. Meehan, the building inspector, testified in answer to the question: “ Q. Had they reached the bottom of the wall in excavating? A. They were underneath the bottom of it.” But in another place he was asked to explain his meaning and in answer to the question, “ Q. By below you mean deeper than the bottom of the wall. Ton don’t mean underneath it, do you? ” he said A. No.”

If the learned justice intended to find that the defendant excavated underneath the bottom of the wall, it is unsupported by the evidence as the plaintiff’s own husband testified that he saw the excavating and it was within two feet of the wall.

At common law the owner of land is entitled to the lateral support of his neighbor’s land only for the soil in its natural state and not for structures imposed thereon by him. If his neighbor excavates in such a manner that without the superimposed structure the land would not have caved in, he is not, in the absence of negligence, liable for injury to structures upon the land due to his excavation, and is under no duty to shore up and protect his neighbor’s property. Radcliff v. City of Brooklyn, 4 N. Y. 195; Dorrity v. Rapp, 72 id. 307. I am unable to find that the defendant in •this action was guilty of negligence in excavating within two feet of the plaintiff’s line and to a depth of two feet; in fact the testimony leads strongly to the conclusion that the falling of the wall was due to the fact that it was a dry wall and improperly and unskillfully constructed.

The judgment must, therefore, be reversed, with costs to the appellant, and the complaint dismissed, with costs.

Guy and Gerard, JJ., concur.

Judgment reversed, with costs to appellant.  