Barnes v. Masterson

The plaintiff was the tenant for a term of years of a lot of land on West Fifteenth street, in the city of New York. On this lot he had erected a brick structure, the first story of which was used as a blacksmith’s shop, and the second as a dwelling place for his family. Immediately adjoining this building on the west was a vacant lot, of which one Reilly was the tenant in possession. The defehdant was a contractor engaged in digging out cellars and making other excavations. On December 10, 1895, the defendant hired the lot from Reilly for the term of one month, for the purpose of storing sand thereon. For some three days sand was deposited on the lot, against the plaintiff’s wall, to a height of some three feet. It is conceded that this work, at least, was done by the defendant. From this time the deposit of sand was continued until the 18th day of December, at which time pressure of sand (it being some 18 or 20-feet high along the plaintiff’s wall) broke down the plaintiff’s house, and destroyed the personal property he had therein. For this injury to his property the plaintiff brought this action, and from the judgment entered therein in his favor this appeal is taken.

There can be no doubt that there was an invasion of the plaintiff’s property right, for which the persons responsible for the injury were liable to him in damages. The wall was wholly on the plaintiff’s land, and the occupant of the adjacent lot had no right whatever to make use of it as a retaining wall for the support of material stored on that lot, any more than he would have had the right to cut openings into it and place beams therein for the purpose of supporting a building or other structure. Sand or gravel will not stand vertically without support, and, therefore, wherever it is deposited in such a way that the sides are vertical, it exerts a lateral thrust on the supports. There was no right whatever in the party storing the sand to impose this pressure or thrust on the plaintiff’s wall. The act itself was wrongful, and either a trespass or a nuisance. This doctrine should not be carried to an extreme; and we do not say that where a man leans his walking stick or a step ladder against Ms neighbor’s wall, but on his own land, this would give a cause of action. But, wherever the placing of articles or material against the neighboring wall creates pressure sufficient in any way to weaken or injure it, then the property rights of the owner of the wall are violated. Davis.

On the trial the defendant insisted that he was not liable, because he had no connection with the work after the first three days. He testifies that at that time he sold the sand then on the lot to one Fogerty, and also gave Fogerty permission to use the lot for the deposit of sand. We do not believe that this fact would necessarily relieve the defendant from liability. It was the pressure of the whole pile of sand, that destroyed the plaintiff’s building. Part of that pressure arose from the sand deposited against the wall by the defendant, as well as that deposited there later. It is true that the defendant’s act alone might not have caused the injury, but nevertheless it was essentially a contributing cause to the injury. In such a ease, where the resulting injury is single, all parties who have contributed to the wrong are liable- for the whole damage. Slater v. Mersereau, 64 N. Y. 138 ; Simmons v. Everson, 124 N. Y. 319 , 26 N. E. 911 .

The case, however, was submitted to the jury upon the theory that if, after the first three days, the deposit of the sand was made by Fogerty, and not by the defendant, the defendant was not liable; and I suppose it is on this theory that we must dispose of this appeal. The defendant’s statement as to the sale of the sand to Fogerty has already been given. Fogerty corroborated the defendant on this subject, and so did other witnesses. But, on the other hand, the plaintiff testified to conversations and admissions of the defendant which tended to destroy the credibility of the whole story. When the sand was first placed on the lot, the plaintiff complained to the defendant that his wall was not strong enough to support it, and would be injured. To this the defendant replied that the house was strong enough, and it would not hurt it. This complaint was corn stantly renewed, and the same answer given. After the injury had been occasioned, the plaintiff said to the defendant: ‘You have done exactly what I told you you would do; you have knocked my house down,”"to which the defendant replied: “You will have to go and see Beilly [defendant’s landlord]. I am not responsible for your house.” At no time did the defendant intimate that he was not prosecuting the work, or name Fogerty .at all. The last conversation is not denied by the defendant. The defendant’s own testimony as to the first of these conversations is: “‘Are you going to put sand on that lot?’ I said, Yes,’ and he said, Will there be any sand up against the wall?’ I said, ‘I guess there will be some.’ Well,’ he said, ‘I am afraid the wall won’t stand it.’ ” To this last remark the defendant coolly responded, “If it don’t stand, you had better shore it up.” Beyond these conversations, it appeared that sand was at all times drawn to the lot in carts bearing the defendant’s name. This is not a case of an illusory denial of the defendant’s testimony, or of a mere scintilla of evidence to disprove his claim. The story of the

The judgment and order appealed from should be affirmed, with costs. All concur.