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Baxter v. York Realty Co.

112 N.Y.S. 455 Court N.Y. App. Div. Decision date 1908-10-09 English

Delivered by WOODWARD, J.

Contents

Majority

p. 455
BAXTER v. YORK REALTY CO.
(128 App. Div. 79.)
(Supreme Court, Appellate Division, Second Department.
October 9, 1908.)

Headnote

1. Statutes—Construction—Construing Entire Statute.
All the words of a statute should be given a meaning, if possible.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 282-288.]
2. Words and Phrases —“Contiguous,” “Adjacent,” and “Adjoining”
Differentiated.
Crabb’s Englisn Synonyms classifies together “adjacent,” “adjoining,” and “contiguous,” and in defining them states that what is adjacent may be separated by some intervening object, what is adjoining must touch in some part, while that which is contiguous must touch entirely on one side.
[Ed. Note.—For other definitions, see Words and Phrases, vol. 1, pp. 184-190; vol. 8, pp. 7565, 7566; vol. 2, pp. 1495, 1496.]
3. Adjoining Landowners —Excavations—Contiguous Structures—“Contiguous.”
The word “contiguous,” in an ordinance providing that where an excavation goes below 10 feet, if the other party permits entrance, the excavator must preserve any adjoining or contiguous structure, contemplates nearness of a structure, but with intervening space, and any wall or structure is contiguous which is near enough to be disturbed by the excavation.
Appeal from Trial Term, Kings County.
Action by Lemuel W. Baxter against the York Realty Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
p. 456
Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILDER, JJ.
Edward V. Farley, for appellant.
Rufus L. Scott, for 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 10 feet without protecting the plaintiff’s walls, in violation of section 22 of the Building Code. The question seriously debated is the application of the ordinance under the circumstances; it being conceded that the defendant’s excavation was 5 feet from the plaintiff’s wall.

The ordinance provides that where the excavation goes below 10 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 5 feet away. The learned referee has entered into a careful consideration of the word and its use, 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 authority.

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 Synonyms, classifies together “adjacent,” “adjoining,” and “contiguous,” and, after giving the etymology of these words, illustrates the difference between them in the following manner:

‘/What is adjacent may be separated by the intervention oí some third object: ‘They have been beating up for volunteers at York, and the towns adjacent, but nobody will list’—Grenville. What is adjoining must touch in some part: ‘As he happens to have no estate adjoining, equal to his own, his oppressions are often borne without resistance.’—Johnson. What is contiguous must be fitted to touch entirely on one side: ‘We arrived at the utmost boundaries of a wood, which lay contiguous to a plain.’—Steele. 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 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.

Judgment affirmed, with costs. All concur.