Baxter v. York Realty Co. — 128 A.D. 79

Majority

p. 79

Lemuel W. Baxter, Respondent, v. York Realty Company, Appellant.

Second Department,

October 9, 1908.

Headnote

Real property — injury to contiguous wall by excavation—Hew York Building Code construed — “ contiguous ” defined.

Under section 22 of the Building Code of the city of New York providing that where an excavation goes below ten feet it shall be the duty of the excavator to “preserve any adjoining or contiguous wall or walls, structure or structures from injury," if the owner thereof permits entrance, a wall is contiguous to the excavation when near enough to be disturbed by it. Thus, a wall five feet from the excavation is contiguous.

The words “adjacent,” “adjoining” and.“contiguous” defined.

Appeal by the defendant, the York Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of October, 1907, upon the report of a referee.

Edward V. Farley [George F. Alexander with him on the brief], for the appellant.

Rufus L. Scott, for the respondent.

This action is brought to recover damages to the plaintiff’s building, alleged to be due to the act of the defendant in excavating to a depth of more than ten feet without protecting the plaintiff’s walls, in violation of section 22 of the Building Code. The ques-. tion seriously debated is the application of the Ordinance under the circumstances, it being conceded that the defendant’s excavation was five feet from the plaintiff’s wall. The -ordinance provides- that where the excavation goes below ten feet, if the other party- permits entrance, it shall be the duty of the party excavating to “preserve any adjoining or contiguous wall or walls, structure or structures, from injury,” etc, The defendant urges that its excavation was not contiguous within the meaning' of the ordinance or regulation, because five feet away. The learned referee has entered into a careful consideration of the word and its usé, as well as into the history of the provision in the Code, and reaches the conclusion that the excavation was contiguous, a conclusion which seems well within reason and axithority. All the words of a statute are to be given some meaning, if possible, and if it were intended to require that the walls should be adjoining there was no occasion for using the word “ contiguous ” disjunctively, and- if contiguous has a larger meaning, and the situation is. within the mischief to be remedied, it is clearly within the statute. Mr. Crabb, in his English Synonymes, classifies together “adjacent,” “adjoining” and “ contiguous,” and, after giving the etymology of these words, illustrates the difference betweén them in the following manner: “ What is adjacent may be separated altogether by the intervention of some third object; ‘ They have been beating up for volunteers at York, and the. towns adjacent, but nobody will list.’—-Granville. What is adjoining must'touch in some part: 6 As he happens to have no estate adjoining, equal to his own, his oppressions are oftén borne without resistance.’— Johnson. What is contiguous must be fitted to touch entirely on one side: ‘ We arrived at the utmostboundaries of a wood, which lay contiguous to a plain.’— Steel6; Lands are adjacent to a house or town; fields are adjoined to each other; houses contiguous to each other.” That is, the word contemplates nearness,- but with intervening spaces, as between houses, and when-we are contemplating a local city provision, designed to apply to

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city lots, with contiguous buildings, it seems entirely proper that we should hold that any wall is contiguous which is near enough to be disturbed by the excavation.

The judgment should be affirmed.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment affirmed, with costs.