Majority
p. 243Jencks v. Kenny. (Superior Court of New York City, Special Term. April, 1892.)
Headnote
Excavations in City Streets—Protection of Abutting Owner’s "Walls.The New York consolidation act, (Laws 1882, c. 410,) § 474, as amended by Laws 1887, o. 566, § 3, requiring an owner excavating below 10 feet to protect Ms neighbor’s wall, does not apply to one excavating in a street of New York city under a contract with the municipal authorities.
Action by Erances M. Jencks to restrain John Kenny from excavating in •front of plaintiff’s premises, unless defendant protect plaintiff’s wall. The property is situated in New York city. Defendant’s excavations exceeded 10 feet in depth, and plaintiff feared that her foundation wall would
p. 244
fall unless shored up, which defendant refused to do. A temporary injunction was granted. Plaintiff moves to continue the injunction.
Motion denied.
E. Hall, for plaintiff. Kellogg, Rose & Smith, for defendant.
The defendant, under a contract with the city, is excavating a sewer in front of plaintiff’s property. The power exercised "is vested in the municipal authorities by express statute (Consolidation Act 1882, § 878.) The act of 1855, c. 6, respecting excavations, re-enacted in 1882 (Consolidation Act, § 474, amended in 1885, c. 456; Id. 1887, e. 566,) applies to-“adjoining owners” only, concerns private rights and obligations, not public-functions, and affords the plaintiff no remedy for the acts complained of..
Motion to continue injunction denied.