
    Otto Goldschmid, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant, and Peter Handibode, Jr., Defendant.
    
      Municipal liability for the act of an independent contractor — effect of the city’s retaining the right to supervise the work — damages for a permanent encroachment ■—failure to protest.
    
    A city which has employed an independent contractor to do work, which is. proper in itself and does not necessarily result in damage to property adjoining the place where the work is to be done, is not liable for damages resulting from, the fact that the work was done negligently, or with improper materials, unless-it retains, by the contract, power to direct and control .the manner of its-performance. .
    The contract under which a- city, -which was engaged in grading a street,, employed an independent contractor to construct, a retaining wall along the street front, provided that the wall should be built in the manner and place specified by the city engineer, and that the material used in it should be subjecfc to the examination of, and be satisfactory to, the street commissioner.
    The wall as built encroached upon the land of an abutting owner, either because-it was actually builtupon his land, or because it had bulged so as to overhang his land, and stones from the wall continually fell upon the land. It appeared that the wall was built in the place indicated by the city engineer, and that a. city inspector was present all the time the work was going on and gave orders as to the stone put in the wall. 
      Held, that the city was liable in damages to the abutting owner;
    That, the encroachment being permanent, the measure of such damages was the depreciation caused thereby in the value of the property, and was not to be arrived at by finding out how much the plaintiffs land was worth a square foot and charging the defendant with the land taken'at the place in question; That the abutting owner was also entitled to recover his actual loss of rents caused hy his losing his tenants and-being unable to obtain others by reason of the existence of the wall and the continual falling of stones therefrom;
    That the. abutting owner did not lose his right to recover damages for the trespass, because he failed to protest against the encroachment;
    That even if he knew that the wall was being located upon his land, no estoppel could he predicated thereon unless he had done some affirmative act which misled the city, or until after such acquiescence, after full knowledge of his rights, as would render it fraudulent to assert them.
    ■ Appeal by the defendant, The Mayor, Aldermen and Common- . ally of the City of New York, from a judgment of the Supreme . Court in .favor of the plaintiff, entered in the office of the clerk of the county of New. York on the 12th clay of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s -office on the 12th day of May, 1896, denying said defendant’s.' motion for a new trial made upon the minutes. .
    
      Chase Mellen, for the appellant.. ' .
    
      Henry A. Gfumbleton, for the respondent.
   Rumsey, J.:

In the year 1892 the plaintiff was thp owner and in the possession •of a lot of land situated bn One Hundred and Eighty-fourth street, near the point where that street intersects Bainbridge avenue. It became necessary to fix the grade of the street in front of the plaintiff’s premises,, and it was established at a height of about twenty-two feet above the surface of the ground along the front of the plaintiff’s lot. The city undertook, through a contractor,'to fill .in the street, and. for that purpose caused to he erected a retaining wall .along the whole front to the necessary height. The wall was located by the engineers in the employ of the city and was built "by the contractor under the direction-of the city officials. It was claimed Toy the plaintiff that this wall was actually built over the line of his premises and that it was so badly constructed that after the earth Lad been filled in behind it on the street, it bulged out so that it' projected over his lot for something over a foot, and that stones were continually falling from the wall upon his land, so that it was unsafe to approach near to the wall, and in consequence he was practically deprived of the use of his premises for some considerable distance about the place where the wall stood. For these alleged wrongs he brought, this action against the city, joining as a defendant, also, the contractor who did the work.

Upon the trial of the action the. jury found a verdict in favor of the ■contractor, but' against the city,, for about $800 damages. Upon this verdict a judgment was entered, .and the defendant, by this appeal, seeks to set aside that judgment. Ho claim was made by the plaintiff that he was entitled to any damages because of the change of the grade of the street in front .of his house. On the contrary, any ■claim for damages for depreciation in the value of his lot because of the change of grade was eliminated in the testimony of the witnesses, .and the jury were carefully instructed by the trial judge that if the damages to the plaintiff’s lot were caused by the change' in the grade of the street, or so far as they were caused by such change, the plaintiff was- no.t entitled, to .recover. The right to a recovery was claimed by the plaintiff, and was ruled by the trial judge to arise entirely from the fact th,at the wall as built encroached upon the plaintiff’s premises, and that .the damage was caused solely by ¡such encroachment. There can be no doubt that the jury were fully instructed upon that subject,' and it is not possible, under the •charge, that any portion of the amount,found by the jury as damages could arise from the mere fact of the depreciation in the value ■of the lot caused by the change in the grade of the street. The sole claim .of the. plaintiff was that the wall, as built, was actually located over tbe lot line so that the.bottom of it stood in part upon his land, and that the wall itself, as built, bulged over his land so as to occupy ■some portion.of it and practically deprive him of the use of the land ■over which the .wall, projected. His claim was that the wall was thus located by the direction of the city officials, and that the bulging •of it came about solely because of the manner in which it was built and the poor materials which were put into it, and that the city was responsible for this because it practically had the control and direction of the manner and material of which the. wall was built. Unless the .plaintiff was right in that contention, it is clear that, upon the law, he was not entitled to. recover.

■'Whenever a municipal corporation employs an independent contractor to do work which is proper in itself, and which does not-necessarily result in damage to property adjoining the place where the work is done, it is not liable for damages which accrue because of the- fact that the work-was done in a negligent manner or-with improper material's. In such-a case the rule is. well settled that, to-make the city liable it must have retained, by its contract, the power to direct and control the manner of -performing the work in which, the carelessness occurred and which caused the damage.. (Vogel v. Mayor, etc., 92 N. Y. 10, 18, per Earl, J.; City of Chicago v. Joney, 60 Ill. 383, 387; Charlock v. Freel, 125 N. Y. 357, 360 ; City of Cincinnati v. Stone, 5 Ohio St. 38 ; City of St. Patti v. Seitz, 3 Minn. 297.) The liability in such a case arises from the fact that the control which the city retains the right to exercise gives to it the power to-, see -that, the work is properly performed and that lione but proper-materials are used in it; and to that extent, the contractor, although nominally an .independent contractor, is, in fact, the servant of the city and under its control, and, therefore, it is responsible for in juries done by him which it might have prevented, .precisely as it would be for the same results caused by any other servant. This was- the theory upon which.the case was submitted to the jury by the learned judge,, and the jury were instructed that the city was only liable if the line, of the wall was incorrectly located by it, and the wall was directed to be* built upon the plaintiff’s property, or if" the plans and specifications-, prepared hy the city were so imperfect that it was apparent to those familiar with the building of walls that when it was finished it was likely to bulge or shift; This instruction as to ¡the extent of the liability, of the'city was given at the request of its counsel, and it certainly cannot be objected! .to as being too broad. Upon the facts, there was no-doubt that the city did retain the right to specify, the place. where-the wall should he built and the manner of .its construction. It was-ex.pi;essly,.prowided ,in.,the-contraet. that.ilre.retamipg-walls.shorild.be built where they were indicated on the plan, or where they were directed by the engineer -to be built, and that the manner in which the walls shoulcl be built was to be determined by the engineer. It was further agreed in the contract that, during all the time while the-work was in progress, the materials used in it should be subject to” the examination of the commissioner, of street improvement, and should be immediately removed if not satisfactory to him. It was proved upon the trial, by the evidence of the witnesses produced om the part of the city, that an inspector was present all the time the1 work was going on, and that he gave directions as to the stone-that was put in the wall. It was also proved, and not disputed, that the place where the wall was located was designated by the engineer employed by the city, and that the trench was dug and the wall was built precisely in the place where the city’s engineers directed it to be done. If, therefore, there was any encroachment upon the plaintiff’s premises, or the wall, when built, was not sufficient for the purpose for which it ivas intended, it is quite clear that, under the:, rule above cited, the city could not escape liability.

That the wall encroached upon the plaintiff’s premises, either because it was set over the line or because it bulged so far as ter overhang the plaintiff’s premises to a considerable extent, was proved beyond any question. The plaintiff testified that, when the trench was dug, a fence which had stood between his lot and the street was taken down, and the trench was dug several feet inside the line which the fence had occupied. But whether or not the fence had stood upon the correct line was not made to appear. It-was testified, however, by another witness, a civil engineer, that the bottom of the wall stood some small distance upon the land of the plaintiff, and he reached this conclusion as the result of actual measurements made upon the ground. Several of the appellant’s witnesses, who were engineers, testified that there was an encroachment of the wall upon the plaintiff’s premises, but they did not say whether this encroachment was caused by the fact that the wall was built over the plaintiff’s line, or simply because of the bulge after it was built-. But there was sufficient evidence to warrant the jury in finding that the wall did encroach to quite a considerable extent upon the plaintiff’s premises.

The appellant complains, that the court refused to charge the following request: “ The fact that the city had an inspector and engineer supervising the work of regulating the street does not make it liable for defective construction of the wall, if defectively constructed by" the contractor who built the wall.” It is quite true -that, as an abstract proposition of law, this request was correct, but we do not think that any injury resulted to the city from the refusal to -charge it, because the court had already given to the jury the true theory upon which alone the city could be-held liable. They had been told that the city was-not liable unless it fixed an incorrect line for the wall and directed it to be built upon the plaintiff’s property, or unless the plans and specifications prepared by it for the erection of the retaining wall were so imperfect that it was apparent that, when built according to the plans and specifications, it was likely to bulge or shift, They were also told that, if the.jury found that the sole cause of ¡the trespass -was the fact that the contractor did not build the wall in accordance with the specifications given him by the city, the jjury could not find a verdict against the city.. These ■ rules stated the grounds of liability so- plainly, as we think, that no injury resulted from the refusal to state the abstract proposition of law requested by the counsel for the city, although, considered as a . proposition of law, it' was undoubtedly correct.

The court Was requested to charge that if the jury found that the • ■city or the contractor did build the wall on'the plaintiff's land they. could not find a verdict-for the plaintiff unless they also found that' i-he plaintiff protested against the encroachment at the time. We. .are unable to conceive of any principle upon which such a charge as: that could have been based. It is nowhere pretended that the plain- ■ -tiff was consulted by anybody' as to where this wall should be located. The facts are undisputed that the engineers for the city went upon the ground, located the line and directed the contractor where to put the wall. That the plaintiff knew that they were: putting it where it was is doubtless true; but that he was aware that • the place where it was put was' upon his premises, or that he knew the exact location of his line, is not shown. Hor would it be a matter of any importance if it were. If one undertakes to make an. improvement upon his own, property, adjoining the land of' another," he is bound at his peril to keep upon his own land, and, if he builds. ■over his own line arid upon the premises of his. neighbor; in the ■ .absence of some affirmative act by the neighbor, which misled him ' into an erroneous location of his' building, he is not at liberty to> insist'that his neighbor has lost his property because he himself has. taken possession of it. ■ An estoppel can only arise in such a case as ■ • that where there has been some affirmative act on the part of the= person sought to be estopped, or, at least, such acquiescence after full knowledge of his rights, as would make it practically fraudulent on his part to assert those rights against the encroaching party.. Hothing of that kind .appears in this case.

It is claimed by the appellant that the damages were excessive^ There was no exception to the measure of damages as stated to the jury by the judge in his charge, and that rule was undoubtedly a correct, one. Where one has trespassed upon the lands of another, and the-encroachment is practically a permanent one, as is the case here, the; rule of damages is the difference between the value of the property before the trespass was committed and afterwards (Argotsinger v. Vines, 82 N. Y. 308), or, as it has been otherwise expressed, the measure of damages is the,“ depreciation in the value of the property.” (Suth. on Dam. § 1017.) It seems to be conceived by the appellant that it is only liable here for the actual value, of the property taken, and that that value is to be estimated by finding out how much the land of the plaintiff was worth a square foot and charging the appellant with the number of square feet taken at that rate.. But it is quite clear that this is entirely erroneous. The depreciation to a city lot by an encroachment upon it is not necessarily to be; measured in that way.

It depends entirely upon other considerations. If one builds a-wall upon his neighbor’s land, along the side or rear of it, it may be-that the damages in that case would be largely measured by the: amount of land taken, although other considerations would, undoubtedly, enter into- the damages in such a case as that; but where the encroachment is along the front of the lot, it is easy to conceive that, an entirely different mode of reaching the damages must be arrived ■ at. The injury to the plaintiff’s premises in such a case does not depend upon the amount of the land taken, but upon the value of: the land which is left, and that, as may easily be seen, is to be governed, not o.nly by the situation and location of the land that is left,, but by the- place where the encroachment is made. If a man should put a column in the middle of Iris neighbor’s city lot the damage-would be much more serious than it would be, if the same erection were put in the corner of the back end of the lot, and nobody would say that in either case the trespasser was to be charged. simply with the value of the square foot of- land which he had taken possession of.

In this case, also, it was made to appear that the plaintiff lost his tenants and was unable to let the house by reason of the location of the wall and the fact that the stones were continually dropping from it, and, that being the case, he is entitled to recover, not only for the ■depreciation in the value of his' land, but also the actual loss of his rents.. (Lacour v. The Mayor, etc., 8 Duer, 406;. Suth. on Dam. § 1028.) The evidence of the witnesses shows that the depreciation in the value of the lot was considerably more than the amount which the jury gave for all the damages which the plaintiff had ¿sustained, and even if the damages had been larger there would lave been no ground for setting aside the verdict.as excessive.

We are not able to see any reason why this judgment should be ¡set aside, and, therefore, the judgment and order must be affirmed, with costs to the plaintiff.

Yan Brunt, P. J., Barrett, O’Brien and Ingraham, J"J., «concurred.

Judgment and order-affirmed, with costs.  