
    Gardner Hall, Jr., Appellant, v. The Louis Weber Building Co., Respondent.
    (Supreme Court, Appellate Term,
    December, 1901.)
    New York city — Construction of L. 1855, ch. 6, as to excavations more than ten feet below the curb — Conditional license — Misjoinder of causes of action.
    Under L. 1855, ch. 6, relative to excavations in the city of New York intended to be carried to a depth of more than ten feet below the curb, the party excavating is entitled to receive from a tenant, of a floor of the adjoining building, likely to be damaged by a shoring-up of it, an unqualified license to enter the building in.order to protect the wall of the tenant’s demise from injury — otherwise the party excavating is absolved from liability — but where he is offered by the tenant and accepts from him a license with conditions, he is liable in damages to the tenant unless he performs them.
    Where, however, the party excavating arbitrarily broke through the wall without performing the conditions and thereby damaged the tenant and the latter sued for “ damages to personal property and
    ■ damages caused by trespass ”, the court reversed a judgment in favor of the tenant upon the ground that two causes of action had been joined and that, upon the evidence, the tenant could recover only for damages to personal property.
    Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, first district, borough of Manhattan.
    Patrick J. O’Beirne, for appellant.
    Ashbel P. Fitch (Grant C. Fox, of counsel), for respondent.
   Scott, J.

The defendant was engaged as contractor in excavating a lot adjoining a building of the basement of which the plaintiff held a lease, and which he occupied as a dealer in spool cotton. It was found in the progress of the work that it was necessary to shore up the building. Defendant notified plaintiff that they were excavating the vacant lot, and notified him to protect his property. Plaintiff, a few days later, addressed defendant as follows: Under advice of counsel we beg to advise you that for the purpose of properly safeguarding this building we shall offer no hindrance to your entrance to the premises occupied by ourselves. We also beg to inform you, we will hold you responsible for all expenses „ incurred and damage sustained by reason of your entrance of our premises. In connection with above we desire to say that in order to properly protect our stock, no opening should be made through the walls of this building until we can take measures to permit of its being done safely. We are prepared to place our stock in safety with the utmost despatch. To do this we believe thirty-six hours will be required and we therefore ask you not to make any opening in walls under that time unless we consent.” The defendant thereupon proceeded to break holes in the wall of the basement where plaintiff kept his stock of goods,-and to insert what are known as needles. It, consequently, became necessary for plaintiff to move a part of his stock away from the wall, and to build a temporary partition and incur • other expenses. About the time the breaking in began defendant caused a letter to be delivered to plaintiff stating that they would pay certain expenses connected with the operation, but declining to be held responsible for the expense of removing goods or for any damage to goods. The duty of a person excavating upon a lot in the city of New York is regulated by statute (Laws of 1855, chap. 6), which provides in effect that whenever a builder contemplates an excavation to a depth of more than ten feet below the curb he shall, “ if afforded the necessary license to enter upon the adjoining land, and not otherwise,” at his own expense protect and preserve the wall of any adjoining building. If the consent to enter upon' the building is refused then the duty of making the walls safe rests with the adjoining owner, and the builder is absolved from liability. At common law a man might excavate as he liked upon his own property without subjecting himself to liability for the consequences to his neighbor’s land- or building. The statute above cited imposed a new obligation upon a person proposing to excavate to a depth greater than ten feet. That obligation was that if afforded the necessary license to enter upon the adjoining land he was bound at his own expense to, preserve any adjoining or contiguous wall or walls, structure or 'structures from injury, and support the satire by proper foundations so that the said wall or walls, structure or structures shall be and remain practically as safe as before said excavation was commenced. This is the sum and extent of the excavator’s liability under the statute. He is entitled to receive an unequivocal license to enter upon the adjoining premises, or none at all. If he receives no license, or if the license is coupled with conditions beyond those specified in the statute, he is' at liberty to go on and make his excavation, leaving the adjoining owner to protect himself as best he may. If, however, the license is coupled with such conditions, and the excavator accepts the

license and proceeds under it, he should he held also to have accepted the conditions, and he cannot exonerate himself from this liability, by declaring coincidentally with his action upon the license, that he will fulfill only a part of the conditions upon which it was granted. This-was the precise situation disclosed by the evidence in the present case. It is now well settled that when a landlord has let his building, and the shoring-up of the walls of that building rendered necessary by adjoining excavations will interfere with that portion of the building occupied by a tenant, the excavator to comply with the statute must obtain permission from the tenant, as well as from the landlord. Johnson v. Oppenheim, 55 N. Y. 280; McKenzie v. Hatton, 141 id. 6; Ketcham v. Cohn, 2 Misc. Rep. 427. The plaintiff's license was, therefore, necessary to a lawful entry upon his premises. He gave permission conditionally. The defendant was not bound to accept this conditional license. He did, however, accept it, and in so doing bound himself to comply with the conditions. The defendant did not commit a trespass because it had a license from plaintiff, and, if the action were only for damages for trespass, it would not lie. The pleadings are oral, and we must accept the statement of the cause of action as returned by the justice. He states the complaint to have been for “ damages to personal property and damages caused by trespass.” This seems to indicate the joinder of two causes of action. So far as it is an action-for damages to personal property it will lie under the evidence. The evidence introduced to show that the landlord had given consent was immaterial, as his consent could not affect the tenant’s rights. So, also, was the evidence as to action by the department of buildings.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

McAdam, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  