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Brennan v. Schreiner

28 Abb. N. Cas. 481 Court N. Y. Superior Court, Special Term; English

Delivered by McAdam, J.

Contents

Majority

p. 481
BRENNAN v. SCHREINER.
N. Y. Superior Court, Special Term;
June, 1892.

Headnote

1. Injunction ; itijury to real estate.] The owner of a house erected upon a stratum of rock extending through adjoining premises, may enjoin the owner of the adjoining premises from blasting the rock, where the blasting, even if conducted with greatest care, would cause serious injury to the house.
2. The same] In such a case, the act itself being wrongful, the defendant cannot shield himself from the consequences by making a contract with another to do the wrong for him ; the rule, that one contracting with another to do a lawful act, in a lawful manner, is not answerable to a stranger for the manner in which the contractor or his servants do the work, does not apply.
3. Forms] Form of complaint in an action by an owner of a house to enjoin an adjoining owner from blasting.
Demurrer to complaint.
The action was brought by Margaret Brennan against Joseph Gallick and Joseph J. Schreiner.
The complaint alleged as follows: First. That the plaintiff is, and was, at the times hereinafter mentioned; the owner of the premises known as No. 405 East 88th Street, on which she has constructed a five story brick apartment-house, 104 feet deep, occupied by nine tenants.
Second. That as plaintiff is informed and believes the defendant, Joseph Schreiner, is the owner of the lots Nos. 407 and 409 East 88th Street.
Third. That as plaintiff is informed and believes said premises, Nos. 407 and 409 East 88th Street are covered with rock which extends a considerable depth below the surface and forms part of the stratum of rock which runs underneath plaintiff’s aforesaid dwelling-house.
Fourth. That as plaintiff is informed and believes said
p. 482
Joseph J. Schreiner, through the defendant, Joseph Gallick, employed by him on contract, is now engaged in excavating dirt and rock from the said premises, and said Joseph Gallick is now, and has been, taking out the said rock from said lot by blasting with dynamite and other explosive substances.
Fifth. That by said blasting on April 12 and 14, 1892, and on various other days at about said period, the ceilings of the upper stories of plaintiff’s premises and the partition walls were cracked; that the front door sills were cracked and raised so high that the front door will not close; that most of the plaster in the house was loosened; that the whole house was raised upon the easterly side by the said blasting, and the front wall of said plaintiff’s premises was cracked from top to bottom, and plaintiff fears that if said blasting be continued that the said apartment-house will be greatly weakened and perhaps fall to the ground.
Sixth. On information and belief, that said rock on which plaintiff’s foundation rests is one and the same mass of rock as that blasted by defendant, and that it is impossible to remove said rock immediately adjoining plaintiff’s premises even with the greatest care and without negligence without causing damage as aforesaid to plaintiff’s premises, and that said blasting is in its nature dangerous, and that said contract to blast said rock is. intrinsically dangerous to others.
Seventh. That the tenants in said apartments, consisting of nine families, have threatened to move out on account of said blasting.
Eighth. That plaintiff has caused inquiry to be made of said defendant Schriener and he has said he would not in any way be responsible for any damage caused by said blasting.
Ninth. That as plaintiff is informed and believes from inquires made of one Lawrence O’Neill and A. C.
p. 483
Pucci, said defendant Gallick is not a man of any pecuniary responsibility.
Wherefore, plaintiff, being remediless except by the interposition .of the equitable powers of the court, prays judgment:
First. That the defendants J oseph Gallick and J oseph J. Schreiner, their agents, servants, and employees may be enjoined and restrained from blasting rock on the aforesaid premises adjoining the premises of the plaintiff in such manner that any injury whatever may be done to plaintiff’s premises, and inasmuch as the .blasting of rock ■cannot be conducted upon said premises so adjoining plaintiff’s premises without injury to said plaintiff’s premises, said blasting being in its nature dangerous, that they may be perpetually enjoined and restrained from ■excavating said rock by blasting by means of dynamite or ■other explosive substance.
Second. That the plaintiff may have such other and further relief in the premises as may be just and proper, together with costs of this action.
Defendant Schreiner demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.
Weekes Brothers, for plaintiff.
Lewis Sanders, for defendant.

Sic utere tuo ut alienum non Jaedas, the maxim which expresses the only restriction which-the law places upon the ownership of property, is invoked by the plaintiff, and is made applicable by the allegation that the rock on which plaintiff’s house rests extends a considerable depth below the surface and forms part of a stratum of rock extending over the adjoining lots, and is one and the same mass of rocks .blasted,by the defendants, and by the further allegation that it is impossible to remove said rock immediately adjoining said plaintiff’s

p. 484
premises, even with the greatest care, without causing damage to plaintiff’s premises.

The demurrer admits the truth of this allegation, which must therefore be accepted as an established, fact to which the law is to be applied. It is settled, that if work authorized by an owner will necessarily produce an injury tó a neighbor, he cannot, by contract with another, free himself from the consequences of the act ( 61 N. Y. 178 ; 31 State Rep. 278). In other-words, where the very act itself is wrongful as against the plaintiff, the defendant cannot shield himself against the consequences by making a contract with another to do the wrong for him. In such cases no question of negligence is involved ( 47 N. Y. Super. Ct. 264 ; 17 N. Y. 104 ; 18 Id. 79; 59 Hun, 593 ).

The owner relies upon the doctrine of respondeatsuperior, which may apply to the facts as the defendants claim them to be, but to make the principle applicable, the defendants should withdraw their admission and deny the facts which -make the other rule controlling. Where an owner contracts with another to do a lawful act, in a lawful manner, he is of course not answerable to a stranger for the manner in which the independent contractor or his servants do the work, but the peculiar facts alleged take the case out of this rule. Demurrers constitute a dangerous form of admission (Moak's Van Santvoord’s Pl. 3d ed. 778), for it is difficult to make a legal argument contrary to the facts admitted. Nothing herein is to be construed as holding that blasting may not be lawfully carriéd on in a city when it can be done, as it ordinarily is, without serious injury to adjoining property. The decision is based on the special facts alleged and admitted.

It follows, that the plaintiff is entitled to interlocutory judgment on the demurrer, with leave to the defendants to withdraw the same and answer-over on payment within ten days of $20 costs, the trial fee of an issue of law.

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