
    Mackenzie v. Hatton.
    (New York Common Pleas—Special Term,
    December, 1893.)
    In an action by the executors of the owner of leased premises against a tenant,’and also against G-., an adjoining owner, and his contractors for the purpose of excavating the basement fora building on said adjoining owner’s property, the complaint alleged that plaintiffs’ building extended to a depth of more than ten feet on the north side of his lot, and that it was constructed in compliance with law, and that G. and his contractors excavated to a depth of twenty-four feet without leaving safe support for plaintiffs’ land and buildings, and in violation of section 474, chapter 410, Laws of 1882, although license to enter upon the building and premises of plaintiffs was duly given by them, and that they wrongfully, negligently and unlawfully entered upon the premises and drove certain needles into the walls of plaintiffs’ building, without permission, knowledge or consent of plaintiffs. It further alleged that it was the tenant’s duty to give G. and his contractors license» to enter upon the premises for the purpose of shoring up and protecting the same, but that he wrongfully, negligently and unlawfully refused 'such permission or license, and otherwise interfered with him and obstructed such defendants, and prevented them from properly shoring up said wall. It was. further alleged that, by reason of the said negligent, wrongful and unlawful acts of the defendants, the walls of plaintiffs’ building settled, cracked and were thrown out of plumb, and were in danger of falling, and plaintiffs were damaged to the amount of $6,000, for which judgment was demanded. The tenant demurred on the grounds : M'rst, that causes of action against him and his codefendants were misjoined, in that one was founded on contract, and the other in tort; second, that no cause of action was stated against him. Held, that the demurrer should be overruled, with leave to defendant to answer within twenty days after entry and service upon him of the interlocutory judgment.
    Demurrer to a complaint.
    
      I). J. Newland and Johnston & Johnston (Edward W. S. Johnston of counsel), for plaintiffs.
    
      Foley & Powell (J. A. Foley of counsel), for defendant Hatton.
   Bookstaver, J.

This action is brought by the plaintiffs, as; executrices, etc., of the last will of Alexander Mackenzie, deceased, who in his lifetime was the owner of premises No. 35 West Fourth street in the city of New York, against his tenant Hatton, who was at the 'times mentioned in the complaint, and still is, in possession of the premises under a lease for a term of three years running from May 1, 1892, and against his codefendants, Simon Goldenberg, owner of the adjacent lot north of the plaintiffs’ premises, and Michael and James J. Larkin, contractors with Goldenberg for the purpose of excavating the basement for a building on the latter’s property. After setting forth the above facts, the complaint alleges that the foundations of plaintiffs’ buildings extended to a depth of more than ten feet on the north side of his lot, and that the building was otherwise constructed in compliance with the laws of the city, county and state of New York and that the defendants Goldenberg and the Larkins excavated toi a depth of twenty-four feet without leaving safe support for plaintiffs’ land and buildings, and in violation of section 474, chapter 410, Laws of 1882, although license to enter upon the building and premises of plaintiffs was duly given by them and that they wrongfully, negligently and unlawfully entered upon the buildings or premises of the plaintiffs,' and drove certain needles into the walls of said plaintiffs’ building, without permission, knowledge or consent of said plaintiffs. It is further alleged that, as tenant, it was Hatton’s duty to give to Goldenberg and the Larkins license to enter upon the leased premises for the purpose of shoring up and protecting the same; but that he “ wrongfully, negligently and unlawfully refused such permission or license as aforesaid, * * and otherwise interfered with, hindered and obstructed ” such defendants, to a certain extent preventing them from properly shoring up the said wall and thereby contributed to the injuries sustained.” The complaint in conclusion charges that by reason of the aforesaid negligent, wrongful and unlawful acts of the defendants above named,” the walls of plaintiffs’ building settled, cracked and were thrown out of plumb, and were iiq danger of falling, and that though partial repairs have been made, the permanent damages amount to $6,000, for which judgment is demanded.

Defendant Hatton demurs to the complaint on the grounds: First, that the causes of action against him and his codefendants are misjoined, in that one is founded on contract, and the other is in tort, and, second, that no cause of action is stated against him.

I think it is sufficient to say, in answer to the first ground,, that the alleged causes of action arise from the same transaction or transactions with the same subject of action, and consequently may, under subdivision 9 of section 484 of the Code of Civil Procedure, be joined, even if one were ex contractu and the other ex delicto. Badger v. Benedict, 1 Hilt. 414,. 419; Grimshaw v. Woolfall, 40 N. Y. St. Repr. 299. The second ground is much more serious; an analysis of the alie.gations of the complaint material to the question presented (which is as above stated) shows that there are two distinct counts against Hatton; one, his failure and refusal to license' the codefendants to enter upon the leased premises; and the other, his active interference with and hindrance to and obstruction of their efforts to shore up and protect the same. The complaint is silent as to the terms of the lease, and we •cannot know, therefore, whether or not any covenants for repairs are contained in it. It must, therefore, be assumed for the purposes of this demurrer that the parties sustained to each other the ordinary common-law relations which exist between landlord and tenant. At common law, without ■express covenant, a landlord was not bound to repair. White v. Mealio, 37 N. Y. Super. Ct. 72; Witty v. Mathews, 52 N. Y. 512; Clancy v. Byrne, 56 id. 133. Nor was he bound to shore np his premises. Howard v. Doolittle, 3 Duer, 464. While it has been held that it was the duty of a tenant under a contract in his lease to make necessary repairs to shore up (Ramsay v. Wilkie, 36 N. Y. St. Eepr. 864), it has also been held that a landlord is not liable to his tenant for a refusal to give a license. Sherwood v. Seaman, 2 Bosw. 127. But it is not iso clear that if the tenant fail to give siich license he is not responsible to his landlord. Such responsibility, however, I do not think can arise under the common law, for the necessity for it arises only under a statute, and the duty must, therefore, arise either from the provisions of the lease, which we do not have before us, or the statute providing for' shoring up. The •only statute relied upon as imposing this duty is section 474, ■chapter 410, Laws of 1882, and an amendment thereof, chapter -456, Laws of 1885, which reads as follows: “ Whenever excavations for buildings or other purposes on any lot or piece of land in the city and county of New York shall be intended to be carried to the depth of more than ten feet below the curb at •a place where 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 excavations, 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 the excavations were commenced.” Then follows a-, general provision which does not seem to affect the rights of individuals as fixed by the part just quoted, but to be merely of a police nature for the protection of the public, to the effect that if the person whose duty it is under the act to preserve the wall or structure from injury neglects or fails so to do after having had a notice of twenty-four hours from the superintendent of buildings to do so, the latter may cause the necessary work of preservation to be done at the expense of the owners of the wall or building so preserved. The effect of this statute is to throw upon the person causing the ■ excavations to be made the duty of supporting adjacent walls only in case the necessary license to enter upon the neighboring premises is afforded them. That this license was not given by the tenant Hatton is the grievance complained of in the first count of the complaint. That both tenant .and landlord must unite in giving permission to make such a license complete is distinctly intimated in Sherwood v. Seaman, 2 Bosw. 127. And in Johnson v. Oppenheim, 53 N. Y. 280-286, our court of last resort has said that the tenant’s permission is essential to the adjacent proprietor’s lawful entry for the preserving the demised premises. It may be that on full consideration it can be established that under this statute, if the tenant does not give the consent necessary, it may be regarded as analagous to commissive waste, which the tenant is never allowed0 to suffer to the injury of his landlord, and that he may be held liable on that ground. But I do not consider it necessary at this time to discuss that question, because the complaint shows that in the present case the refusal in no wise injured the plaintiff as to the adjacent owner and his contractors, because they disregarded, according to the allegations of the complaint, the tenant’s objections, and entered upon the premises and proceeded to shore them up, either in some way having obtained such possession or assumed to have the necessary license; consequently their liability to the plaintiff is consummate.

As to the second charge against the demurrant, that he interfered with the effort made by the other defendants to protect the demised premises, so far as his relations to such others •are concerned, it may be conceded that the tenant in possession had a perfect right to interfere with and thwart any measures they might take about the building, since as to him they were trespassers. But if in the exercise of this right as against the trespassers he violated some obligation to his landlord, he is liable to him, and whether or not he did is a question to be determined on their common-law relations, and independently of the statute, which was not, in my opinion, intended to absolve the tenant from his obligation to the landlord, to refrain from acts injurious to the demised premises. The complaint, as I interpret it, charges him with such acts, although with some vagueness and uncertainty. But these defects are not grounds for demurrer, and the demurrer must, therefore, be overruled and judgment ordered for the plaintiff, with costs, but with leave to the defendant to answer within twenty days after the entry and service of an interlocutory judgment upon him and the payment of costs.

Demurrer overruled.  