Majority
p. 436COURT OF APPEALS. Frederic S. Cozzens, respondent agt. Alvin Higgins, appellant. September Term, 1866.
Headnote
In an action of trespass for the wrongful act of the'defendant in entering upon premises leased and occupied by the plaintiff, and substantially expelling him from possession, and the defendant assumed to justify the acts complained of, on the ground that they were necessary to protect the property of the plaintiff from injuriesto which he (defendant) was about to expose it, by undermining the walls of both, for'the purpose of building on his own lots, andjthat the means he used were appropriate and adequate for such purpose:geld, that proof having been given of the condition of the plaintiff’s premises at the time the defendant entered with his workmen, and of the subsequent acts which rendered them untenantable; and for the purpose of showing their state at the time the plaintiff was compelled to leave them, & photograph view of the cellar, was properly admitted in evidence, as an appropriate aid to' the jury in applying the evidence.
Appeal from the supreme court. The action was trespass,' for the wrongful act of the defendant in entering upon premises leased and occupied by the plaintiff, and substantially expelling him from possession and breaking up his business, which was that of a wine merchant.
The cause was tried at the New York circuit, before- Mr. Justice Lott, and a verdict was rendered for the plaintiff, on conflicting evidence and under instructions, with which both the parties were satisfied. The finding of the jury upon the facts was sustained at the special and general terms, and no questions of law were raised, except on the admission of evidence.
p. 437
It appeared on the trial, that in the summer and fall of 1855, the plaintiff was in the occupancy of a wine store at No. 85 Chambers street, under a lease from a third party, which was to expire on the 1st of May, 1856.
The defendant owned the next two lots on the west, being No.-’s 87 and 89, on which he proceeded in the fall to erect two new six-story stores, in lieu of the old buildings. In June or July, he had procured a lease from the owner of the premises occupied by the plaintiff, for a term of years, to commence on the 1st of May, following; on which he intended to erect a third store, which he afterwards did. Without disclosing these facts to the plaintiff, he endeavored during the summer, to buy out his leasehold interest, but refused to pay the price he named, which was $3,000.
The act of 1855 provides as follows : “ Whenever excavations hereafter commenced, for building or other purposes, on any lot or piece of land in the city and county of New York and the city of Brooklyn, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall, at times, from the commencement until the completion of such excavations, at . his oiun expense, preserve such wall from injury, and so support the same by a proper foundation, that it shall remain as stable as before such excavations were commenced.”
It appears from the proof and the finding, that the defendant not only did not obtain or apply for the license contemplated by the act, but that in the beginning of September, he proceeded, without notice or authority, to open holes in the walls of the plaintiff’s cellar, in which his wines were deposited, and to render it untenantable, by projecting into it heavy timbers, for the' purpose of shoving up his own east wall and the plaintiff’s west wall, while he was excavating the earth under each to the depth of twenty feet, and laying foundations for the new stores. This he persisted in doing,
p. 438
though forbid by the plaintiff. The latter was doing a business, amounting in gross to some $50,000 a year. The bulk of his stock was stored in the cellar, and it was there that most of the business was done, except the sales made at the counter. The defendant excavated on the lot of the plaintiff as well as his own; undermined the cellar steps of No. 85 in front as well as in the rear; removed the stones and built them into his own wall; took from the plaintiff his fireplace, chimney and out-building.; kept his property exposed to maurauders; compelled him to keep watches by night or day; thrust a short timber and jack-screw into the front door of the store, keeping them there for five days, against his remonstrance ; and under color of protecting his walls, disabled him from protecting them himself. These acts were continued in various forms, for months. The plaintiff was substantially dispossessed, and he was compelled at last, in the month of November, to engage a store elsewhere, and transfer to it his property and business.
The exceptions urged on the appeal, were on questions which arose in this wise : Proof having been given of the condition of the plaintiff’s premises at the time the defendant entered with his workmen, and of the subsequent acts which rendered them untenantable; and for the purpose of showing their state at the time the plaintiff was compelled to leave them, his counsel “ produced and put in evidence a photograph made, and showing the condition of the cellar in November, 1855. Defendant’s counsel objected. The court allowed the photograph to be exhibited to, and examined by the jury, and the defendant’s counsel excepted.”
In the course of the plaintiff’s examination, he testified to the inadequacy of the means resorted to by the defendant to protect the store against the consequences of the excavation. He was' asked : “ What was the effect of the digging ?” Question objected to by defendant’s counsel; the court overruled the objection, and defendant’s counsel excepted. Answer. “ My cellar floor dropped down about two-thirds across it. It was left in that condition for nearly nine months or more.” The other exception now insisted
p. 439
on, is to the following clause in his testimony : “ As regards the vault under the sidewalk, the defendant, in braiding his own vault, suffered the end of mine to fall down.”
The jury found a verdict for the plaintiff for $8,000. The judgment entered thereon was affirmed at the general term in the first judicial district.
Augustus F. Smith, for the appellant.
William Fullerton, for the respondent.
The appellant assumed to justify the acts complained of, on the ground that they were necessary to protect the property of the plaintiff from, injuries to which he was about to expose it, by undermining the walls of both ; that the means he used were appropriate and adequate, and that they were resorted to with the assent of the respondent. The evidence objected to was admissible, as it tended to show the extent of the actual injury, and the insufficiency of the appliances to which the defendant had recourse, for the purpose of averting it. It was for the jury to determine, in view of all the evidence, and under appropriate instructions from the court, how far the damages resulting to the plaintiff were ref enrabie to the defendant’s wrong. The photographic view of the cellar was an appropriate aid to the jury in applying the evidence, as it was taken in the month of November, and showed the condition, of the premises at that time. None of the evidence objected to was irrelvant to the issue, and in no instance was any ground of objection stated, to justify its exclusion by the judge.
The cause was well tried, and the judgment should be affirmed.
Judgment affirmed.