
    Jane McKenzie et al., Appellants, v. Loftus D. Hatton, Respondent.
    (New York Common Pleas— General Term,
    December, 1895.)
    1. Landlobd and tenant — Obstbuction to shoeing up building.
    Pacts sufficient to sustain a finding that a refusal by a tenant to permit the removal of a staircase did not obstruct the work of shoring up the building to protect it from an adjoining excavation.
    2. Evidence—Pbepondebance.
    Where the plaintiff’s evidence was in nature merely hearsay, while that of defendant was direct and positive, a verdict for the defendant cannot he held to he against the weight of evidence.
    Appeal from judgment on verdict in favor of the defendant and from an order denying motion for new trial.
    
      D. J. Newland and Edward W. S. Johnston, for appellants.
    
      Foley & Powell, for respondent.
   Bischoff, J.

Plaintiffs, the personal representatives and trustees under the' last will and testament of one Alexander McKenzie, the owner .and lessor of certain premises in the city of New York, sued his tenant for damages to such premises, sustained, as alleged, by reason of the latter’s interference with the necessary operations of certain-parties when engaged in shoring up-the wall of the building for its lateral support, the abutting lot being in process of excavation. Laws 1882,-chap. 410, § 474, amended by' Laws 1885-,' chap. 456, and see McKenzie v. Hatton, 6 Misc. Rep. 153 ; 9 id. 16, 19.

That .the plaintiffs had a cause of action, ■ assuming the defendant’s failure to give the necessary permission to the excavating parties to enter upon the premises for the purposes noted, or his obstruction of their work, was held throughout the trial, and the question forms no part of our inquiry upon this appeal; the learned trial judge left it to the jury to determine whether or not the defendant had failed in his duty as thus outlined, and their finding was that this' duty had been performed.

The question of fact practically came to the inquiry whether the defendant’s refusal' to allow the removal of a staircase, on the premises, which refusal was admitted, interfered with the necessary work "of shoring up, and thus resulted in injury to the wall; there is no material dispute that the shorers were granted access to the premises, and, while there was some evidence that- the defendant had, at one time, expressed á refusal to allow further progress of the work, there was ample testimony that such was not the fact, and this testimony was credited by the jury.

With regard to the defendant’s position that the staircase should not be removed,, we must hold that the jury, were justified in finding that this formed no obstruction to the work of the shorers resulting in the damage to the premises. From the testimony of the defendant and of his engineer it appears that there was sufficient space under the' staircase for the insertion of “needles,” as the horizontal supporting beams were termed, and that an aperture sufficient for such insertion had been actually made in that space by the • shorers but was not used. 'The plaintiff’s witness, Larkin, testified that,a needle ” had been inserted at this point but was not wedged up,” although without this process the “ needle ” would be . worthless, and such wedging up was not obstructed by the defendant.

It is to be noted that the evidence adduced by the plaintiffs as to the effect of the presence of the staircase upon the work •was in nature merely hearsay, while that of the defendant, was direct and positive. Certainly we cannot say that the plaintiffs have sustained their burden of proof by a preponderance of the evidence and reverse this judgment upon the facts.

A point is made that the charge to the jury was inconsistent,, hut we confess surprise that the argument should be advanced.

The learned judge charged that it was for the jury to say whether the defendant’s refusal to permit removal of the staircase interfered with the proper protection of the wall, and this submission was not questioned by the appellants. But. our attention is called to the fact that before proceeding to-charge the jury in his own words the judge charged at the-request of the appellants (according to the printed case) as follows : “ That it was necessary for those shorers to remove the staircase in defendant’s cellar to properly" shore up, protect- and preserve the wall of plaintiffs’ building, the refusal of the defendant to permit such removal, which refusal he admits-having made, renders defendant liable to the plaintiffs for whatever damage the jury shall find accrued to the plaintiffs’ building therefrom.”.

It may be that the stenographer at the trial did not fully note the wording of this request or that there was an error in. transcription, hut from the probability of the matter, the rulings upon the trial and the obviously incomplete construction of the sentence, as now relied upon by the party framing it, we must hold it to be inconceivable that the court, counsel and jury understood the request in any way other than" as a conditional statement.

If the appellants’ counsel had believed at the trial that the court had intentionally directed a verdict in his clients’ favor upon the main issue, his natural course wo aid have been to object to the submission of the facts upon that issue to the iury-j but no trace of an objection as to this is found;

Whatever inconsistency may be discovered in this instance it was not that of the trial judge, and we must determine this appeal with regard to the appellants’ attitude at the trial.

Certain exceptions were taken to rulings upon evidence, but, upon examination, they are not found to present error. That first relied upon deals- merely with the court’s proper exercise of discretion as to the order of proof; the second objection calls attention to the admissibility of the pleadings in another action, to the admission of which no exception was taken: Mext it is claimed that expert testimony touching the cause of the damage to the walls was erroneously admitted, but this evidence had direct bearing upon the issues raised by the -pleadings.

Mo other points are presented, and we fail to find reason for disturbing the judgment and order appealed from. They are, therefore, affirmed, with costs.

Bookstaver .and Pryor,'JJ., concur.

Judgment and .order affirmed, with costs.  