Hill v. Schneider

The plaintiff is the lessee and in the possession of the premises known as “No. 103 West Thirty-Sixth Street,” under a lease which expires on the 1st of May, 1897. He carries on at that place the business of plumbing and other business, and has done so for several years. The defendant Schneider is the owner in fee of the premises. He also owns the land on Thirty-Sixth street, between Broadway and Sixth ávenue, extending northerly about 100 feet. He is engaged in work preliminary to the construction of a large hotel building on these premises, and, to that end, has entered into a contract with a person who is not a defendant in this action, to make the necessary excavations, and to erect the building. The original contractor has caused the buildings upon a large portion of said land to be removed, and has entered into a contract with the defendant Bradley to make such excavations upon the whole of said land, including the premises occupied by the plaintiff’s building, as are necessary for the construction of the hotel which Schneider intends to build. Over a large portion of this area, blasting has been in progress to a considerable extent. It appears that during the progress of the work a notice was served upon the defendant Schneider, by the department of buildings, that the building occupied by the plaintiff was unsafe and dangerous in certain respects specified in the notice, and Schneider was required to take steps to secure the building by properly shoring it up, or to take it down. In pursuance of that notice, he proceeded to take down the wall of the two upper stories, but the remainder of the building, which is occupied by the plaintiff, has been permitted to stand, having, as it seems, a temporary roof over it, so that it is not entirely uninhabitable. A large amount of blasting has already been done in such a way and with such unnecessary force as to shatter the walls of the building, and plaintiff says that the insecurity complained of by the department of buildings was brought about by the excessive blasts used in causing the explosions in the course of the excavations. He alleges in his affidavits that this» was done, and that the notice was procured to be sent by the department of buildings, in pursuance of a scheme of Schneider’s to drive the plaintiff away from the premises so that Schneider and his contractors could take possession of them for the purpose of proceeding with the construction of the hotel. This is denied by the defendants, but. the undisputed facts and circumstances surrounding the transaction are such that there would be little difficulty, if it were necessary to do so, in concluding that the defendants were not at all unwilling to proceed, at least, as far as they could without incurring liability, to render the premises so uninhabitable that the plaintiff could not occupy them; and it is more than inferable from the affidavits that, in their anxiety to proceed in the exercise of their rights as far .as the law would permit them, they have, intentionally dr otherwise, ■gone considerably beyond them, and inflicted upon the plaintiff damages for which they have become liable. But it is not necessary to examine that question further here, because we are of opinion that, upon the facts which are plainly established, the plaintiff

The plaintiff alleges, and it is not denied, that the defendant Bradley, in blasting the premises, has caused to be drilled, to the necessary depth, holes three inches in diameter, which have been filled with giant powder, and the blasts thus prepared let off, in such a way as to shatter the rock, and enable the workmen to take it out. It is not denied that this has been the course of the work. It is conceded that the blasts thus let off shattered the rock in the immediate vicinity of their location to a considerable extent, so as to permit its removal easily; but just how far beyond the location of the holes in which the blasts were placed the rock was shattered does not appear. It is alleged by the plaintiff, and is not denied, that, at the time of the making of the affidavits upon which this motion was based, the. workmen were engaged in drilling holes of the same diameter and depth as had formerly been drilled, within three feet of the face of the wall of the plaintiff's building, and that these holes were drilled for the purpose of further blasting the rock in the excavation. This is not denied by Bradley or those who make affidavits for him. It is stated by the plaintiff that the effect of letting off the blasts which have already been exploded is to seriously shatter the walls of his building, and in fact, as he claims, the ruinous condition of the walls mentioned above, in the notice from the department of buildings, was caused by these blasts. This is denied by the defendants’ witnesses who testify on that subject. But we think a fair consideration of all the affidavits establishes that the ruinous condition of the plaintiff’s building was caused by the action of these blasts. At least, no other good reason is suggested why such a condition, which undoubtedly exists, should be so suddenly caused; and, as the firing off of the blasts may have been a sufficient cause, there is no reason why it should not be accepted as the cause, unless another sufficient one can be discovered by reference to the affidavits, which is not the case.

The affidavits presented by the plaintiff state that the firing off of blasts such as already have been fired off, in the holes which have been already drilled, will cause further damage to the building; in fact, will make it unsafe to occupy it. These affidavits are made by persons who are familiar with the business, and who have been accustomed to observe the effect of the explosion of blasts of giant powder, and are able, as it would seem, to judge with reasonable accuracy of the action of such blasts. On the part of the defendants it is denied that the blasts are likely to produce any such effect. But a careful examination of the affidavit of the defendants’ witnesses fails to satisfy us that the blasting, as proposed to be done by Bradley, will not injure the plaintiff’s property. In fact, the affidavit produced by the defendants, of Mr. Horgan, the architect of the hotel, who says that he is familiar with this sort of work, satisfies us that there is very great danger that further blasting will

The affiants for the plaintiff say that there is another practicable way of blasting out the rock close to this wall, in such a way as not to injure it. They testify that they are accustomed to that kind of work, and that the way they described of doing the work, by drilling smaller holes, with hand drills, and using small charges of powder, is the usual method adopted by contractors when taking out rock near the walls of buildings. That is denied by one or two of the witnesses sworn on behalf of the defendants, so far as that they say that it is not the usual way of doing that sort of business. They.do not claim that the work cannot be done by blasting in that way, but they testify that it is not practicable, in a business sense, thus to do it. Just what that means is quite enigmatical. Whether a thing is practicable in a business sense depends upon the judgment of the particular person to whom the question of its practicability is presented, and the conclusion which he will form upon that question is very likely to depend entirely upon his notion of what is a reasonable profit to be gotten from doing the work in a particular way, and how much profit he thinks he ought to get in the particular case. A statement of that kind necessarily can have but little weight, unless it sets forth facts showing the foundation of the opinion, and enabling the court to judge of the accuracy with which it is formed. It is not difficult for -one who is familiar with the literature upon this particular branch of the law to ascertain the origin of the phrase which is used in these affidavits, and to judge of the weight to be given to it. It had its origin as a statement of a proposition of law, and, as such, it may have a well-defined meaning; but when it is sought to bé changed from a proposition of law to a statement of a fact based upon opinion, without any information as to the facts upon which the opinion is formed, it must necessarily have very little weight. Therefore, the case presents itself-substantially in this way:

The law upon this subject is laid down in the case of Morgan v. Bowes, 17 N. Y. Supp. 22 , 62 Hun, 623 , which was an action for damages for blasting upon the defendants’ premises, as the result of which the plaintiff’s buildings were seriously shaken and injured. It appeared in that case that the blasts were deliberate and continuous, and they did great and increasing damage to the plaintiff’s property. The defendants claimed that they were not liable, because they could only be chargeable in damages when an actual trespass was committed by reason of the blasting upon the plaintiff’s land; that is, where the rock or soil was blown over into the adjoining lot, or against the adjoining house. This claim of the defendants was expressly overruled, and it was held that injuries resulting from violent and continuous concussions, by which the plaintiff’s house was shaken and injured, must be compensated for in damages, just as though the injuries had been caused by rocks thrown against the house which had produced the same result. The case is precisely

The defendants insist that the case is within that of Booth v. Railroad Co., 140 N. Y. 267 , 35 N. E. 592 , and the learned justice at the special term denied the motion upon the authority of that case. But an examination of that case shows, we think, that the facts here are very different. It was conceded in that case that the work to be done by the railroad company, and which caused the injury to the plaintiff’s house, could be done in no other way than by blasting, as the defendants were blasting, and that the defendants, in blasting as they did, were using due care. Upon those concessions, the court held that as the defendants were doing only what was necessary to make an excavation upon their own land, and were doing it with proper care, they were not liable; but the chief judge, in delivering the opinion of the court, says, expressly, that if there had been any negligence shown on the part of the defendants, or if it had been practicable, in a business sense, to do the work in such a way as not to injure the plaintiff’s premises, and the defendants had not done it in that way, the action for damages would lie. The case was evidently decided upon the special facts made to appear upon the trial, and it is undoubtedly an authority for any other case where the same conditions exist. But the rule laid down in that case, while supposed by the court to be necessary for the protection of persons improving their land, ought not to be extended to give those persons the privilege unnecessarily to destroy the buildings of their neighbors. It is undoubtedly true, as stated in that case, that one is not to be prevented from improving his own premises because a building has been erected by his neighbor upon an adjoining lot. It is equally true that one who has a building upon his own premises is not to be punished for having improved his land, by permitting his neighbor, who has not improved his lot, to shake down the building first built, so that another one may be erected alongside of it. Such a rule of law would operate just as much to prevent the improvement of land as the rule which was repudiated in the Case of Booth. The true rule must be that, while any person is at liberty to improve his own land, yet, in the doing of that, he must use every practicable means to avoid injury to his neighbor, and he will not be permitted by the use of powerful explosives upon his own land to injure the house of his neighbor. Certainly is this so when, by the use of smaller explosives or in some other way, even at a greater expense, he can avoid such a result. In this case it is Arery clear that the blasting in the way proposed to be done by Bradley is not necessary, even within the exceedingly broad rule in favor of builders laid down in the Booth Case, supra.

But it is claimed on the part of the defendants that this injury is not irreparable. The effect of the blasting will be to shake down the house, and make it entirely uninhabitable, with the necessary result that the plaintiff will be obliged to leave it, to abandon his busi

_ Professor Pomeroy, in discussing when the legal remedy is inadequate, so as to authorize relief in equity, says:

“The legal remedy is not adequate simply because a recovery for pecuniary damages is possible. It is only adequate when the injured party can, by one action at law, recover damages which constitute a complete and certain relief for the whole wrong,—a relief virtually as efficient as that given by a court of equity.” Pom. Eq. Jur. § 1357, note 1.

High, Inj. §§ 701, 704; Livingston v. Livingston, 6 Johns. Oh. 497.

In that statement he is sustained by all the authorities; and, within the rule which he lays down, the plaintiff is clearly entitled to his injunction so far as the defendant Bradley is concerned. But the defendant Schneider stands in an entirely different position. While he is the owner of these premises, and is desirous of obtaining possession of them, and it is fair to infer that he has used every means in his power to do so, and even that he is not unwilling to see this house destroyed, so that he may have possession of his land, yet we cannot see from the affidavits here that he has been a party to the blasting, so as to warrant an injunction against him. It appears that he has made a contract with the Charles S. Kendall Company to do this work. So far as appears, in making this contract he did nothing to violate the rights of the plaintiff. Certainly, the making of the contract itself was not in violation of the rights of the plaintiff, for it was not necessary under the contract for the contractors to take possession of this land, or to do anything to which the plaintiff could object. The plaintiff does not show that any portion of this blasting has been controlled by the defendant Schneider. He has nothing to do with it, upon the facts stated in the papers presented to the court. He has no control over Bradley, and no privity of contract with him, and could not in any way restrain his action. For that reason, we are of the opinion that the plaintiff has not shown anything to entitle him to a preliminary injunction against Schneider, because there is nothing in the case which would warrant a finding that Schneider either has done or could do any act about the blasting out of this excavation which would affect the plaintiff’s rights, or, indeed, that he has any control over the excavation whatever.

Upon the facts which were made to appear, there was no privity between Bradley and Schneider. Schneider made a: contract with the Kendall Company to accomplish a certain result, leaving it to them to use the ordinary means to complete the work which they agreed to do. He had, so far as appears, no right to control them as to their manner of doing the work. They were responsible to him only for the results to be obtained, and the thing to be done was lawful in itself. That being the case, neither the Kendall Company nor Bradley occupied towards Schneider the relation of a servant. Hexamer v. Webb, 101 N. Y. 377 , 4 N.

The order must therefore be affirmed as to the defendant Schneider, with $10 costs and disbursements to be paid by the plaintiff to him, and reversed as to the defendant Bradley, with $10 costs and disbursements to be paid by Bradley .to the plaintiff, and, as to Bradley, the injunction granted, with $10 costs to abide event. All concur.