Wear v. Koehler — 168 A.D. 115

Majority

p. 115

Frank M. Wear, Respondent, v. Theresa Koehler, Appellant.

First Department,

June 4, 1915.

Headnote

Real property — lateral support — municipal corporation — section 22 of Building Code of city of New York construed—liability for cost of supporting adjacent walls.

By virtue of section 22 of the Building Code of the city of New York, an owner of a building who files plans for the erection of a new building on her lot, showing an intention to excavate to a depth of over ten feet below the curb line, and who after excavating to such an extent as to make the wall of the adjoining building unsafe, fails to comply with an order of the building department to support the adjoining wall, is liable for the amount expended by the adjoining owner in complying with the order of the building department.

Section 22 of the Building Code is remedial in character, and should be liberally construed. Its purpose is to impose an obligation upon any person removing or intending to remove the lateral support of a wall to a depth of over'ten feet, and such obligation comes into existence when the removal of the lateral support renders the walls of the adjacent building unsafe. It makes no difference whether the lateral support so removed consists in the removal of an old wall, or of original rock and earth beneath it.

Said section imposes an obligation of sustaining existing walls not only when an excavation is actually carried to a depth of more than ten feet below the curb, but also where it is intended to be carried to such a depth. Hence, the fact that materials were furnished and work performed in making the adjoining wall safe before the excavation had reached a depth of more than ten feet, did not constitute a defense to the action to recover the amount expended.

Appeal by the defendant, Theresa Koehler, from a determination and order of the Appellate Term of the Supreme Court

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in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of December, 1914, reversing an order of the City Court of the City of New York granting defendant’s motion to set aside a verdict herein in plaintiff’s favor and awarding judgment to the defendant, and further reversing the judgment thereupon entered in the office of the clerk of the City Court of the City of New York. The defendant further appeals from the judgment in plaintiff’s favor, entered in the office of the clerk of the City Court of the City of New York on the 6th day of January, 1915, pursuant to the determination and order of the Appellate Term.

Clifford C. Roberts, for the appellant.

Herman B. Goodstein, for the respondent.

The plaintiff and defendant owned adjoining buildings in the city of New York. The wall of the plaintiff’s building next to and adjoining that of the defendant’s extended from six and one-half to seven feet and that of the defendant’s approximately nine feet below the curb level. On May 18, 1912, the defendant filed plans in the building department for the erection of a new building on her lot, stating therein that she intended to excavate to a,depth of twelve feet. She immediately thereafter commenced to tear down the old building and on August 3, 1912, her employees were engaged in removing the foundation of the wall next to and adjoining that of the plaintiff’s. While this work was in progress the building department notified both plaintiff and defendant that plaintiff’s wall, by reason of defendant’s excavation, was in an unsafe condition and ordered that the same be at once made safe. The defendant having failed and neglected to comply with the order, the plaintiff did so and then brought this action in the City Court of the City of New York to recover the sum thus expended. At the conclusion of the trial the court directed á verdict for the plaintiff, subject to the opinion of the court, and the question of the value of the work performed in making the wall' safe was submitted to the jury, which brought in a verdict in favor of the plaintiff for $550. The verdict was sub-

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1 sequently set aside and judgment awarded to the defendant dismissing the complaint. On appeal to the Appellate Term it reversed the judgment and reinstated the verdict in favor of the plaintiff, and from this determination defendant appeals to this court.

The question presented turns upon the construction to be put upon section 22 of the Building Code. This section, or so much of it as is necessary to be considered, provides: "Whenever an excavation of either earth or rock for building or other purposes shall be intended to be, or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times, from the commencement to the completion thereof, * * * at his or their own expense, preserve any adjoining or contiguous wall or walls, structure or structures from injury, and support the same by proper foundations, so that the said wall or walls ‘ "" * shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining * * * walls * * "" are down more or less than ten feet below the curb. * * * Any party doing the said work, or any part thereof, under and by direction of [the] said department of buildings, may bring and maintain an action against the person or persons last herein referred to, to recover the value of the work done and materials furnished.” (See Cosby’s Code of Ordinances [Anno. 1914], 186, § 22; now Id. [Anno. 1915] 71, § 230.)

The section has the same force and effect as a statute. (City of New York v. Trustees, 85 App. Div. 355 ; Post v. Kerwin, 133 id. 404 .)

The fact that the materials were furnished and work performed in making plaintiff’s wall safe before defendant’s excavation had reached a depth of more than ten feet did not constitute a defense to the action. The section quoted imposes an obligation of sustaining existing walls not only when an excavation is actually carried to a depth of more than ten feet below the curb, but also where it is intended to be carried to such a depth. . (Blanchard v. Savarese, 97 App. Div. 58 ; affd., 184 N. Y. 537 ; Foster v. Zampieri, 140 App. Div. 471 ; affd., 206 N. Y. 704 .) The plans filed by the defendant with the building department show that she intended to excavate to a depth

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of twelve feet, and when the walls of her building had been demolished to such an extent that it rendered the walls of the plaintiff’s building unsafe, then there rested upon her the obligation of making the same safe, and if she failed to do so, plaintiff, without waiting, could do whatever was necessary to accomplish that purpose and recover the necessary expense incurred from the defendant.

It is strenuously urged by the defendant that the section of the Building Code refers only to original excavations, and, therefore, until the wall of her building had been completely removed, and the work of excavating' below the old foundation line commenced, she was under no obligation to support the plaintiff’s wall. This is too narrow a construction to place upon the section, which is remedial in character, and by its terms requires a liberal construction. The purpose sought to be accomplished by it was to impose an obligation upon any person removing or intending to remove the ■ lateral support of a wall to a depth of over ten feet, and such obligation comes into existence when the removal of the lateral support ren-' ders the walls of the adjacent building unsafe. It makes no difference whether the lateral support so removed consists in the removal of the old wall, or of original rock and earth beneath it. When the defendant, therefore, commenced to remove the wall of her building with the intention of proceeding with the excavation to a depth of twelve feet below the curb level she thereby commenced her excavation within the meaning of the Building Code, and was obligated to do what was necessary to make the wall of plaintiff’s building safe. She having failed to do that, the plaintiff was compelled, under the order of the building department, to do so, and he was entitled to recover the necessary expense incurred.

It follows, therefore, that the determination of the Appellate Term is right and should be affirmed, with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Determination affirmed, with costs.

Cases cited

City of New York v. Trustees of Sailors' Snug Harbor 85 App. Div. 355 N.Y. App. Div. 1903-07-07 p. 117
Blanchard v. Savarese 97 App. Div. 58 N.Y. App. Div. 1904-07-28 p. 117