Brooklyn Trust Co. v. City of New York

Headnote

Trespass — ■lateral support — • New York city — when adjoining property owner may recover for additional expense in constructing its foundations owing to loss of lateral support by reason of construction of subway in street.

Brooklyn Trust Co. v. City of New York, 198 App. Div. 595 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 1, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to enjoin a continuing trespass or for damages. The complaint alleged that by reason of defendant’s alleged trespass upon plaintiff’s land in Montague street, adjacent to its building at the corner of Clinton and Montague streets, by the construction of a subway railroad, plaintiff was obliged to incur greater and additional expense in the construction of foundations for its ■building, in order to protect it from injuries which were anticipated in the event defendant carried out its threat to construct said railroad, which expense would not have been necessary but for such trespass. The trial court found facts which substantially established that the defendant’s act in sinking its subway to a depth of seventy feet below the grade of Montague street resulted in such a loss of lateral support that the plaintiff was obliged to change its plans for the construction of its foundation from twenty feet, ten inches, to sixty-five feet, ten inches, as a result of which it suffered additional

expense and damage. The Appellate Division held : “ The plaintiff is properly in equity by reason of the continuing trespass to its property by the defendant, and, once properly in equity, the court has the right to continue and assess the damages arising out of the trespass, on the theory of avoiding a multiplicity of suits.”