Ketchum v. Newman — 27 N.Y. St. Rep. 537

Majority

p. 537

Andres W. Ketchum et al., Resp’ts, v. Henry Newman et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed November 26, 1889.)

Headnote

1. New Yobk city—Paroi license to dig below foundation—Effect OF REVOCATION OF.

Defendants under a paroi license from plaintiffs entered upon the prem

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ises of the latter and inserted “ needles ” to hold up the division wall, which was partially a party wall, and after half the wall had been taken down, and plaintiff’s building was only supported by the needles, the latter served a notice to remove all materials from and stop work on their premises. Held, that as the license was granted under chapter 410, Laws 1882, which specified what defendants must do upon receiving such license, and the removal of the needles at that time would endanger the lives of the workmen and allow the building to fall, that up to the extent that the walls had been shored at the time the revocation was served defendants had the right to proceed and build up the new wall, so as to sustain the walls of plaintiff’s building, and for that purpose had the right to enter upon so much of the plaintiffs’ lands as was necessary, before they could be required to remove the needles from the premises.

2. Same.

In so doing they must act with reasonable dispatch, without unreasona- . ble delay, in a good workmanlike manner, with as little injury to plaintiffs as possible, but in so doing they cannot be regarded as trespassers.

Appeal from a judgment of the general term of the court of ■common pleas of the city and county of New York, affirming .a judgment entered upon a verdict.

Herbert A. Kingsbury, for app’lts; Eugene S. Ives, for resp’ts.

This action was brought to recover damages which it is alleged the plaintiffs had sustained by reason of the ■destruction of their stock of millinery goods, consisting of silks, ribbons, velvets, flowers, feathers, hats, etc., and for being deprived of the use of a portion of the basement of the premises occupied by them and of the first floor of the rear of their premises.

■ The plaintiffs were the tenants and occupants of the store known as 632 Broadway in the city of New York. The defendants were the owners of the adjoining building, 630. In February, 1882, the defendants took down their building and commenced excavating for the purpose of re-building. Their contractor, Goodwin, entered upon the premises occupied by the plaintiffs and inserted numerous needles or sticks of timber through their basement wall for the purpose of shoring up and holding the wall of the building in position whilst the defendants excavated for the foundation wall of their new building and built the same up so as to support the walls of the plaintiffs’ building.

The defense was that the plaintiffs had given the defendants a license so to do, which became a controverted question of fact in the case.

The statute provides that “ whenever excavations for building or other purposes on any lot or piece of land in the city and county of New York shall be intended to be carried to a depth of more than ten feet below the curb, and there shall be any party or other wall wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land and not otherwise, shall at all times, from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury and so support the same by a proper foundation that it shall remain as stable as

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before the excavations were commenced.” Laws of 1882, chap. 410, § 474.

The trial court, in its charge to the jury, called attention to the provisions of this statute and submitted the question of fact as to whether or not the license to enter the plaintiffs’ premises and .shore up the walls was in fact given.

It further appeared that after the needles had been entered shoring up the main wall of the plaintiffs’ building, and after half ■of the wall had been taken down, a notice was served by the plaintiffs upon the defendants requiring them to remove the materials and men from their premises, and ordered them to discontinue and put a stop to all work or labor on their premises from that date, and notifying them not to enter upon the premises thereafter, or do any work or labor thereon. The court charged the jury that “ while a license given by one party to another where the licensee spends money, and upon which license he acts, might not in every case be revocable at the mere caprice and will of the licensor, yet in a case where the license is merely permissive, and no actual damage has occurred, a paroi license may be revoked by notice at any time. The original entry would be lawful, but a continuance upon the premises after such notice constitutes a trespass.

“I charge you in accordance with the authority laid down in the case of Murdock v. Prospect Park & Coney Island Railroad Company, 73 N. Y. Reports, page 584, that a paroi license may be revoked by the party granting it at any time, and, after such revocation, the licensee or party for whose benefit the license was originally granted would be a trespasser if he insisted in acting under it”

The defendants excepted to such portions of the charge which hold “ that if a license was given in this case to enter upon the plaintiffs’ premises and shore up their wall, that such license might be revoked by the notice, and was revoked by the notice written, ■alleged to have been served upon the defendants, if the jury find that it was served upon them, even though the defendant Goodwin had acted upon the license, and had inserted needles for the ■support of the wall in pursuance of that license; ” to which the court replied: “ I think I said it was revocable. I do not recollect that I said that it was revoked as a fact.”

The defendants’ counsel stated to the court that he claimed that the tenant, having given a license under the circumstances to do this particular thing, could not by any possibility as against the owner of the building, and against those who had. expended money under the license, compel the parties who had acted on their consent at their own expense to withdraw the support from the wall, and cause the wall to fall; to which the court replied that he had left all the evidence upon that point to the jury, where it properly belonged; that he had stated the decision •of the court of appeals as to a paroi license being revocable. The defendants’ counsel then stated that for the purpose of saving the point he passed to the court a written request, to charge, which he would consider denied so as to save the exception. The request so passed to the court was not charged, and is as follows;

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“If the jury find from the evidence that, prior to the defendant Goodwin commencing to shore up the plaintiffs' wall, the-plaintiffs orally consented that he might enter upon their premises for that purpose, and thereupon, acting upon this consent, the defendant Goodwin did enter upon the plaintiffs’ premises for the purpose of shoring up said wall, and did cause needles to be inserted for such purpose, and did go to considerable expense in the work of shoring up said wall, and did said work with reasonable skill and care, and that thereafter the plaintiffs undertook to revoke their said permission by ordering said Goodwin and the-other defendants to remove the said needles at their own expense, such revocation was ineffectual to this extent, that it did not require the defendants Cohn and Newman to withdraw at their own expense the needles thus put in.”

The evidence tended to show that the old foundation wall, for a space of about sixty feet, was a party wall, upon which both buildings were constructed. This wall, below the needles, was-entirely removed, the excavation made some twenty-two feet below the curb, and a new wall built up, which became the support for the wall of the plaintiffs’ budding.

As we have seen that at the time of the revocation of the license- or of the notice to remove was given, half of the old foundation wall had been entirely removed, and the plaintiffs’ building was-then supported by the needles which had been inserted through the wall To remove them at that time would endanger the lives-of the workmen and allow the building to fall. We have carefully examined the authorities upon which the court and the respondents rely, and we have no question to make in reference to-the correctness of the rule as stated in those cases, but we do question their application to the case under consideration.

In the case of Murdock v. Prospect Park & Coney Island Railroad Company, 78 N. Y., 579 , the license was given by the owner of the land to the railroad company to occupy the lands for its-road. It was not a grant of a permanent interest in the realty,, but was simply a license to enter, and was revocable at pleasure.

So in the case of Mumford v. Whitney, 15 Wend., 380 . It was a paroi agreement that a party may abut and erect a dam upon the lands of another for the purpose of creating a water power. It was held that a license was a mere authority to enter upon the-lands of another, and that a permanent interest in land could be transferred only by writing.

In these cases a permanent right to occupy real estate was-claimed under a license in the absence of any written transfer or permit; but in the case under consideration the-license, if given, was made pursuant to the statute to which we have referred, and was authorized by it. When given the defendants were required, “ at all times from the commencement until the completion of such excavations, at his own expense, to preserve such Wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were-commenced.”

Here we have express statutory provisions specifying what the

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defendants must do upon receiving the license, and it appears to us that, at least up to the extent that the walls had been shored at the time the revocation of the license was served, the defendants had the right to proceed and build up the new wall so as to sustain the walls of the plaintiffs’ building, and for that purpose had the right to enter upon so much of the plaintiffs’ lands as was necessary, before they could be required to remove the needles from the premises. Undoubtedly it was the duty of the defendants to proceed with reasonable dispatch, without unnecessary delay, to perform the job in a good workmanlike manner, with as little injury and inconvenience to the plaintiffs as possible, but in so doing they cannot be regarded as trespassers, and no recovery could be maintained against them as such. Whether or not the defendants had the right to proceed and shore up other portions of the plaintiffs’ building after service of the notice of revocation it is not necessary to now consider, for under the charge of the «court the defendants were regarded as trespassers from the time of the revocation of the license, if they thereafter acted under it.

For the reasons stated, the judgment must be reversed and a new trial ordered, with costs to abide the event.

All concur.