
    Alfred Post, Appellant, v. Andrew Kerwin, Jr., Respondent.
    Second Department,
    June 11, 1909.
    Mew York city — building code — negligence — excavating — use of party wall — trial — charge.
    The building code of New York city has the same force and’efféct as a statute. The liability for a breach of the duty imposed by section 33 of said code on one making an excavation for the purpose of erecting a building to preserve from injury a party wall which he intends to use is absolute and does not depend on negligence.
    Where in an action by an adjoining owner against one erecting a new building ' and using a party wall, for injuries done: to the wall, the’1 plaintiff, if his evidence was to be believed, bad established a case clearly within the provisions of section 22 of said code, and the trial court specifically instructed the jury at the commencement and conclusion of its charge that the action was for negligence and that the plaintiff could not recover unless he had satisfied them by a fair preponderance of the evidence that defendant was negligent in making the excavation and using the wall, a judgment in favor of the defendant will be reversed, although the complaint alleged that the acts and omissions of the defendant were wrongful and negligent.
    Hibschberg and Miller, JJ., dissented.
    Appeal by the plaintiff, Alfred Post, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 25 th day of April, 1908, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 21st day of May, 1908, denying the plaintiff’s motion for a new trial made upon the minutes, in an action brought to recover damages to a building owned by the plaintiff, in consequence of the alleged wrongful and negligent acts of the defendant.
    
      Frank Parker Ufford [Philip Carpenter with him on the brief], for the appellant.
    
      Charles W. Pierson, for the respondent.
   Rich, J.:

There is sufficient evidence in the case, if believed, to sustain a finding against the defendant under the provisions of section 22 of Building Code of the city of New York. This code has the same force and effect as a statute. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 407, as amd. by Laws of 1904, chaps. 602, 628; City of New York v. Trustees, 85 App, Div. 355; affd., 180 N. Y. 527.) The defendant, who was engaged in the construction of a building upon premises adjoining those of plaintiff, testified that the depth of his excavation was twenty feet below-the curb at the front of his building and eleven feet at the rear, and that in constructing his new building he used the party wall, on the top of which he.constructed a new wall to a height in all of one hundred and thirty-six feet. The plaintiff’s house had four stories and a basement. The building constructed by the defendant was an eleven-story office and loft building. There was an issue as to the condition of the party wall at the time the defendant commenced work, but the .evidence of the plaintiff and his witnesses, if believed by the jury, was sufficient to sustain a finding that it was in good condition and sufficient for the use of the plaintiff’s building, upon which defendant’s liability might have been based, irrespective of the degree of care used in the work. (Dorrity v. Rapp, 72 N. Y. 307; Bernheimer v. Kilpatrick, 53 Hun, 316; affd., 127 N. Y. 672; Cohen v. Simmons, 50 N. Y. St. Repr. 146; affd., 142 N. Y. 671.) The learned trial court charged the jury: “ This action is for negligence. Plaintiff, therefore, must establish the facts entitling him to recover by a fair preponderance of proof and from, the evidence. He must show that the defendant was negligent and he must be free from contributory negligence. Failing in either, he cannot recover.” He then directed the attention of the jury to the provisions of the Building Code and correctly instructed them as to the duties and liability of the defendant thereunder. He concluded his charge with' the following language: “ This case, as I said at the outset, is one of negligence; if you find for the plaintiff it must be because he. has satisfied you by a fair preponderance of proof of the negligence of this defendant and his own freedom from contributory negligence.” I think the effect 'of this charge was to instruct the jury that although they found from the evidence facts which might establish the liability of the defendant, because of his having Carried the excavation for his building to a depth of more than ten feet below the curb, and had used the party wall, which was in good condition and sufficient for the use of plaintiff’s building, nevertheless the plaintiff could not recover unless they found in addition that the defendant was negligent in making such excavation and in the user he made of the party wall. These instructions were erroneous and prejudicial, because the plaintiff had established a casé, if his evidence was to be believed, clearly within the provisions of a statute which imposed duties and liabilities absolute, unqualified, and in no manner dependent upon the degree of care exercised by the defendant in the conduct of his building operations. ' Such statutory liability cannot be avoided by showing that in the work the defendant exercised due care and was free from negligence. While it is true, as contended, that the court charged in form that the liability under the Building Code was absolute, it specifically instructed the jury, at the commencement and conclusion of its charge, that the action was for negligence and that the plaintiff could not recover unless he had satisfied them by a fair preponderance of the evidence that the defendant was negligent. The charge of the learned trial justice was perfectly clear and the jury must have understood that notwithstanding anything he had said regarding such liability, they could not render a verdict for the plaintiff unless they found the defendant negligent in his performance of the work and user of the party wall. The basis of defendant’s liability was thus made the existence of negligence, and excluded all other grounds of liability. In view of the emphasis these instructions placed upon the necessity of defendant’s negligence being established, as a condition precedent to plaintiff’s recovery, I think it is reasonably certain that the plaintiff was prejudiced, and that the error of the learned trial justice is so substantial as to call for a reversal.

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

Bubr, J., concurred ; Oraynor, J., concurred in separate opinion;

• Hirschberg, P. J., and Miller, J., dissented.

Gaynor, J.

(concurring):

It is provided by section 22 of the Building Code of the city of Mew York (1) that when excavation for the purpose of erecting a building shall be made deeper than 10 feet below the curb, the person causing the excavation to be made, i. e., the owner or lessee doing the work, shall, at his own expense, preserve the adjoining wall and structure “ from injury, and'support the same by proper foundations, so that the said ” wall and structure “ shall be and remain practically as safe as before such excavation was commenced” ; and (2) that if there be a party wall which is to be used, “ and such party wall is in good condition and sufficient for the uses of the adjoining building”, such person causing such adjoining excavation shall at his own expense preserve such party wall from injury, and support the same by proper foundations, so that said party wall shall be and remain practically as safe as before the excavation was commenced.”

The complainant alleges that the defendant did not do these things, and injured his building. It is true that it charges the acts and omissions of the defendant as wrongful and negligent, whereas the law is that the liability for breach of the duty imposed by these provisions- is absolute, and does not depend on negligence at all (Dorrity v. Rapp, 72 N. Y. 307): The learned trial Judge took the learned pleader at his word,- however, and charged the jury that if there was no negligence the plaintiff could not recover, and when requested to correct this, and charge that the! liability was absolute* and not dependent .on negligence, refused, on the ground that- the complaint was for negligence. It would be entirely agreeable to me to - side with -him, for courts should not be misled by such slovenly and unscientific ple'adings, and then have error predicated thereon. But in the looseness of our practice, this, it seeiqs, will not -do'. It is quite the custom, for instance, for answers to set up things as affirmative defences, which are not defences at all, but embraced in the issue raised by denial or denials ; and yet if a trial Judge in such a case takes the pleading at its word, and charges the jury that 'the burden is on the defendant to make out his pleaded defence by a preponderance, of evidence, he. will be held in error (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45). I therefore suppose we must regard the words “ wrongful ” and “ negligent ” in tliis complaint as mere surplusage, attributable to the immemorial desire of pleaders to deal in hard words, out of which no pleader nor any one else ever yet got. a dividend.

The complaint does not plead the said section, of the Building Code, or allege the violation of any duty imposed by it. But that was not necessary. It is never necessary to allege the law, common or statute, which makes the defendant liable. The way is to allege the acts or omissions which did the injury, and if they were a breach of duty, whether by common law or by statute matters not. In either case, and the same in each, .the law is not pleaded but only cited -to the court on the trial to show the acts or omissions which are breaches of duty. It is true that when an action oí defence is “founded on” a private statute, which phrase embraces city or local ordinances, the private statute or ordinance has to be pleaded, except where it has been referred to and recognized by a public- statute, in which case the courts will take -notice of it the same as of public statutes, without it being pleaded (20 Encyc. Pl. & Pr. 597); and that is the case with this Building Code (N. Y. Charter, see. 407). It is a common, thing in actions for negligence to put ordinances in evidence to prove or help to prove negligence, without 'their having been pleaded, and they do not need to be pleaded.

Judgment and order reversed and new trial granted, costs to abide the event.  