
    PAUL NEMETH, DEFENDANT IN ERROR, v. SIMON SLAFF, PLAINTIFF IN ERROR.
    Submitted December 15, 1909
    Decided February 28, 1910.
    The trial judge, in giving liis reasons for denying a request to charge that “there vas no evidence as to the amount of damages,”' pointed out certain factors in the testimony as shoving the inaccuracy of the proposition of fact that lie was requested to charge. Ihlti, that, assuming that the language of the court would be erroneous as an instruction to the jury as to the legal rule respecting damages, it cannot be laid hold of to reverse the judgment for error, upon that aspect of the case, unless the attention of the trial court was called io such possible application of sis remarks or to the danger of their being misapprehended in that respect.
    Oil error fco the Passaic Circuit Court.
    For the plaintiff in error, Henry C. Whitehead,.
    
    For the defendant in error, Joseph H. Lefferts and Donald Lefferts.
    
   The opinion of the court was delivered by

Garrison, J.

This writ of error brings np for review the rulings of the Passaic Circuit Court against the motion of nonsuit and the motion to direct a verdict in favor of the defendant, and also an exception predicated upon the language in which the refusal of the eonrt to charge specifically a request proffered by the defendant was couched.

Generally slated the plaintiff’s case was that at the time filis canse of action arose the parties were the owners of adjoining real estate, that on Hie lot of the plaintiff was a three-story brick building, and that the plaintiff’s lot extended hack from his house on which were flowers, vegetables and herbage. That the defendant made an excavation on his lot for the const ruction of a four-story brick tenement-house, and that there was testimony from which the jury could find that the result of this excavation was the falling in of the plaintiff’s garden and that the negligent manner in which the work was done injured the plaintiff’s house.

The defendant’s motion for a nonsuit and for the direction of a verdict were properly denied. The testimony raised controverted questions of fact upon all of the matters on which the plaintiff’s right to a recovery and the defendant’s claim to immunity from damages depended. The contention that a verdict should have been directed, because of the defendant’s testimony that the excavation was made by an independent contractor, cannot prevail, inasmuch as there was also testimony that the defendant himself intermeddled with the work. This precise question was left to the jury, as one of fact, coupled with a statement of the law that if the evidence showed that the work was let out to an independent contractor the plaintiff could not recover from the defendant. As this statement was wholly favorable to the plaintiff in error, it is not necessary to determine its correctness as applied to the facts of this case.

The only remaining assignment of error to be considered is that based upon a bill of exceptions that presents the language used by the trial court in denying one of the requests to charge proffered by the plaintiff in error.

The request was “That there is no evidence before the jury in this case as to the amount of damage to the plaintiff’s lot, and therefore the only damages which may be assessed are those to the building which may be found only in case the jury find that the work was done by the defendant negligently and carelessly.”

It is admitted that this request was faulty and was property denied, but exception was taken to the language in which the court couched its denial of the request. This is what the court said: “That request contains a number of propositions. I will have to separate it. Whether there is any evidence is not for the court to say. I cannot say there is no evidence before the jury in this case as to the amount of damage to the plaintiff’s lot; I think there is, as a matter of fact. I think there is evidence upon which you can determine what the damage was to the soil. Yon have the value of the lot. For instance, we have the fact that part of the garden with flowers and hushes on it were destroyed, sunk down. J think those facts alone would be quite sufficient for you to draw an inference as to the amount of damage in that resjiect. This request says that ‘the only damages which may he assessed are those against the building’ is not true. It goes on to say, ‘which may be found only in case the jury find that the work was done by the defendant negligently and carelessly.’ I think I will not charge that.”

If this language had been used by the court as laying down a legal rule as to the quantum of proof required of the plaintiff, or if it had been used in response to a request to charge upon that aspect of the case, there would be much force in the contention that the entire rule, and, consequently, the correct rule, liad not been charged. That, however, was not the situation. The judge was asked to charge'that there was no evidence upon this point. To refute this proposition and to point out its inaccuracy the judge ran over certain factors in the testimony for the purpose, not of saying that they constituted adequate proof upon the point in question, but for the purpose of showing that they negatived the proposition of the request, viz., that there was no evidence. In view of the purpose for which it was used, therefore, the language of the court cannot be laid hold of to reverse this judgment. If counsel was dissatisfied with the charge upon the question of the quantum of proof required of the plaintiff, or if he deemed that the remarks of the judge (addressed apparently to counsel as the reasons for his ruling) might mi=lead the jury, the attention of the court should have been directed to the matter at a time when a fuller charge might have been made or any misapprehension as to the scope of the judicial remarks have been cleared up.

Without further discussion therefore of the accuracy of the judge’s language considered as a substantive charge, this assignment musí he held to he inadequate to support a reversal. The judgment of the Circuit Court is affirmed.

For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, JJ. 15.

For reversal — If one.  