Eno v. Del Vecchio & Snyder — 13 N.Y. Super. Ct. 17

Majority

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Eno, Respondent, v. Del Vecchio & Snyder, Appellants.

Headnote

Where the owner of two adjoining lots of ground erects a building upon each with a partition-wall extending partly on each lot, used as a support to each building, and necessary to such support, and thereafter he, or his representatives, conveys the houses and lots separately to different persons, each purchaser acquires an easement, for the support of the house conveyed to him, in so much of the party-wall as stands upon the other lot.

Neither purchaser can lawfully remove or interfere with such party-wall, without the consent of the other, so as to injure the other’s building. If he do so, though for the purpose of making improvements within the limits of his own lot, he is liable for such injury.

No degree of care or diligence in.the performance of the work will relieve him from liability, if injury to the other in fact is caused by making such improvements. The party makes them at his peril.

Nor can he protect himself by making a contract for the work, with a third person exercising an independent employment. The act done is a trespass, and being done by the express direction of the party, both he and his contractor are liable for the consequences.

If the injured building be in the possession of a tenant for a term of years, the owner can only recover for the injury to the building itself, and not for the interruption or interference with the possession or use and enjoyment thereof,

For such injury to the building the owner may recover, notwithstanding his lease to his tenant contains a covenant binding the tenant to make all alterations and repairs during the term,

(Before Hoffman, Slosson and Woodruff, JJ.)

Heard, April;

decided, June, 1856.

Appeal from a judgment in favor of the plaintiff.

It was before the court upon a case containing the evidence and exceptions taken on the trial. The action was brought by the plaintiff, as owner in fee of the dwelling-house known as 496 Broadway, in the city of New York, to recover damages for the injuries alleged to have been done to his dwelling-house, by the wrongful disturbance and removal of an ancient party-wall, there

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by depriving the house of the plaintiff of the support to which it was entitled. The defendants answered separately, and in their answers denied all the material allegations of the complaint.

The cause was tried before Boswobth, J., and a jury, in March, 1855, and after the cause had been opened on the part of the plaintiff, the counsel for the defendant moved the court for judgment for the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court denied the motion, and the counsel for the defendants duly excepted.

The counsel for the plaintiff then proved that the premises 494, as well as 496, were portions of a row of similar buildings which had been erected previous to the year 1820, with partition-walls in common as at present, and then gave evidence tending to show that the defendants had lowered the floor of the first story of the premises 494 Broadway; that for that purpose the foundation of the division-wall between Hos. 494 and 496, on the north side of No. 494, had been cut down about eighteen inches; that the cellar of Ho. 494 had been dug down to about the same depth, and the division:wall underpinned; that in consequence thereof, the division-wall had settled down some two or three inches, carrying down the floors of 496, and that the front and rear brick walls of that building were cracked, and that the damage to Ho, 496 was from six hundred to fifteen hundred dollars. The plaintiff’s witnesses testified that a common and proper manner of underpinning a wall, under which excavations to a small depth are made, is to dig out the earth in sections of two or three feet in length, and to underpin the wall in those sections before digging any more.

On the cross-examination of George Peckham, a witness on the part of the plaintiff, he testified that the premises, Ho. 496 Broadway, were leased by the plaintiff for a term of years by a written lease, to which he was subscribing witness. The counsel for the defendants called upon the counsel for the plaintiff to produce such lease. The counsel for the plaintiff produced the same, and the counsel for the defendants read it in evidence in the words and figures following, to wit:

“ This agreement, made the eighth day of February, in the year 1851, between Amos R. Eno, merchant, of the first part, and Albert Losee, of the second part:

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“ Witpesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and does hereby take, the house known as number 496 Broadway, in the city of New York, for the term of five years, to commence on the first day of May, 1851, and to end on the first day of May, 1856, and the said party of the second part hereby covenants and agrees to pay unto the said party of the first part, the yearly rent or sum of fifteen hundred dollars, payable quarterly, to wit, on the first days of August, November, February, and May, in each year. Also to make all alterations and repairs at his cost and expense. And also shall pay the regular annual charge or rent, which is or may be charged, assessed, or imposed, according to law, upon the said house or tenement for Croton water, and to quit and surrender the premises at the expiration of the term in as good state and condition as the reasonable use and wear thereof will permit, damages by the elements excepted. And the said party of the second part further covenants that he will not assign, let, or underlet, the whole or any part of the said premises, without the written consent of the said party of the first part, under the penalty of forfeiture and damages, and that he will not occupy the said premises, nor permit the same to be occupied for any business deemed extra hazardous, without the like consent under the like penalty, and the said party of the second part further covenants, that he will permit the said party of the first part, or his agents, to show tbe premises to persons wishing to hire or purchase, and on and after tbe first day of February next preceding tbe expiration of the term, will permit the usual notice of 1 To Let,’ or ‘For Sale,’ to be placed upon the walls or doors of said premises thereon, without hindrance or molestation; and also if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and to relet the said premises, as the agent of the said party of the second part, and to receive the rent thereof, applying the same first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due by these presents, and the balance (if any) to be paid over to the said party of the second part. .

“ And the said party of the second part hereby further cove*

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nants, that if any default be made in the payment of the said rent, or any par); thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring and relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine. And the said party of the first part shall, and may re-enter the said premises and remove all persons therefrom. And the party of the second part hereby expressly waives the service of any notice in writing of intention to re-enter, as provided for in the third section of an Act entitled 1 An Act to abolish distress for rent, and for other purposes, passed May 13, 1846.’

“In witness whereof, the parties to these presents, have hereunto set their hands and seals, the day and year first above written.

“Albert Loses. [Seal.]

“ Sealed and delivered in ) the presence of j

“George Peckham.

“ In consideration of the letting of the premises above mentioned, to the above-named , I hereby covenant and agree, to and with the party of the first part, above named, and his legal representatives, that if default shall at any time be made by the said in the payment of the rent, and performance of the covenants above contained, on his part to be paid and performed, that I will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part.

“ Witness my hand and seal, the eighth day of February, in the year of our Lord, one thousand eight hundred and fifty-one.

“Jacob F. Oaklet. _ [Seal.]

“Witness—George Peckham.”

The said George Peckham further testified, that the plaintiff had received under protest, from the tenant, all the rents payable under

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such lease, without any deduction for any injuries to the premises, and that the plaintiff had paid nothing for any repairs of any in-j ury complained of in the complaint in this action.

The counsel for the plaintiff then read in evidence a deed, bearing date the 19th day of January, 1844, made by John L. Lawrence, administrator of the goods, etc., of Isaac Lawrence, deceased, to the plaintiff, and one John J. Phelps; and also a deed, bearing date the 18th day of June, 1846, made by the said John J. Phelps to the plaintiff, in and by which deed the premises now known as Ho. 496 Broadway are conveyed by the following description:

“ All that certain lot, piece, or parcel of land, situate, lying, and being in the fourteenth ward in the city of Hew York, bounded and described as follows: beginning at a point on the easterly side of Broadway, eighty-six feet northerly from the north-easterly corner of Broadway and Broome-street, running thence northerly along Broadway aforesaid twenty-three feet, thence easterly one hundred feet, thence southerly, parallel to Broadway, twenty-three feet, thence westerly one hundred feet to Broadway aforesaid; the said lot being now known and distinguished by the street number four hundred and ninety-six, (496,) Broadway, being the same premises conveyed to the said Amos R. Eno and John J. Phelps, parties hereto, by John L. Lawrence, administrator, etc., by indenture bearing date the nineteenth day of January, 1844, and recorded in the office of register of the city and county of Hew York, in liber 446 of Conveyances, p. 72.”

The counsel for the defendants admitted that the said John L. Lawrence had lawful authority to make said deed.

The counsel for the plaintiff offered in evidence a deed, bearing date the 20th day of Hovember, 1839, purporting to have been made by Isaac Lawrence, and Cornelia B., his wife, to Julia B. L. Wells, for the premises now known as 494 Broadway, in which deed the said premises are described in the words and figures following, to wit:

All that certain house and lot of land, lying and being in the fourteenth ward of the city of Hew York, on the easterly side of Broadway, now known and distinguished as Ho. 494, in said street, bounded as follows, to wit: westerly, in front, on Broadway ; easterly, in the rear, by land now or formerly of John Jacob Astor; northerly, by the house and lot of the said John Jacob

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Astor, containing in breadth, in front and rear, twenty-three feet, and in depth, on each side, one hundred feet, be the same more or less. The northerly wall of said house, hereby conveyed, being a party-wall, and the northerly side of said lot, hereby conveyed, being in a line through the centre of said wall.

The counsel for the defendants objected to the reception of said deed in evidence, on the ground that the plaintiff has complained as for injuries to an ancient wall, and is not entitled to give evidence by deed of a reservation to his grantor of an easement in the wall.

The court overruled the objection, and received the deed in evidence, to which the counsel for defendants duly excepted.

The counsel for the plaintiff then proved, that the defendant Del Vecchio is the lessee for a term of years of the premises at 494 Broadway, and that the defendant Snyder had made the alterations on those premises for the defendant Del Vecchio.

The counsel for the plaintiff rested his case, and the counsel for the defendant Snyder moved for a dismissal of the complaint, as to said'defendant, on the grounds:

1st. There is no evidence to connect Snyder with the injury complained of. 2d. The plaintiff must elect whether he will go against Del Vecchio or Snyder. He can not sue both principal and agent in one suit. 3d. There is no proof showing that this would be an injury to the reversion—

Which motion was denied by the court, and the counsel for the defendant Snyder duly excepted.

The counsel for the defendant Del Vecchio moved for a dismissal of the complaint, as to said defendant, on the grounds:

1st. There is no evidence showing that the plaintiff had an easement in that part of the wall which stood on the defendant’s lot. 2d. That the plaintiff, by his complaint, claims damages to both the possession and the freehold; the proof shows an outstanding lease for years, and the plaintiff is not entitled to recover for injuries to the possession, and can only recover for injuries to the freehold by complaining as reversioner. 3d. There is no evi-dence that Del Vecchio did the work which occasioned the alleged injury, or employed the men who did it. 4th. This action can not be maintained jointly against the principal and agent. 5th. There is no evidence to show that the alterations on the defendant

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Del Yecchio’s premises were done in a negligent or unskillful manner; but, on the contrary, the evidence is, that it appeared to have been done carefully. The complaint is not sustained by the evidence, and should be dismissed. 6th. The action is improperly brought. It should have been an action of trespass, and not on the case.

Which motion was denied by the court, and the counsel for the defendant Del Yecchio duly excepted.

The counsel for the defendants then gave evidence tending to show that the alterations in the premises No. 494 Broadway were made in a prudent and careful manner, that the undermining of the division wall was done in sections of two or three feet at a time, and that the division wall, and the front and rear walls of the plaintiff’s house, were cracked at the time of the alterations in No. 494 Broadway.

The defendants also gave evidence tending to prove that the front of the building 496 Broadway had been so altered and repaired, as to make the same as perfect as before the alleged injury.

The counsel for the defendant Del Yecchio called as a witness upon his behalf the defendant John Snyder, who testified that he was employed by the defendant Del Yecchio under a contract to make the alterations on No. 494 Broadway, that he did malee those alterations pursuant to such contract, furnished the materials therefor, and employed and paid the men who did the work; that before he commenced work he called on the tenant in possession of 496 Broadway.

The defendant Del Yecchio offered to prove, that before the work on 494 Broadway was commenced the witness called on the tenant in possession of 496, who was the assignee of the lease of the plaintiff to Losee, and notified him of the intention to make the alterations on No. 494, and that he assented thereto. The counsel for the plaintiff objected, the court sustained the objection, and the counsel for the defendant Del Yecchio duly excepted.

The counsel for the defendant Snyder offered to prove the same facts by the defendant Del Yecchio, the counsel for the plaintiff objected, the court sustained the objection, and the counsel for the defendant Snyder -duly excepted. When the evidence was closed, the counsel for the defendant Del Yecchio

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moved the court to direct the jury to find a verdict in his favor, on the ground that it appeared that the work was done by the employees of the defendant Snyder, that the relationship of master and servant did not exist between the defendant Del Vecchio and the men who did the work, and he is not responsible for their negligence, which motion was denied, and the counsel for Del Vecchio duly excepted.

The counsel for the defendant Del Vecchio requested the court to charge the jury—

1st. That if Snyder did the work under a contract with Del Vecchio, and the work was done by Snyder’s employees, Del Vecchio is not liable for their negligence, and the jury must find for him. 2d. That Del Vecchio had a right to cut down the wall, dig out the cellar, and underpin the wall on his own premises if he chose to do so, and would be responsible only for the negligence- of his own immediate employees. 3d. That the wall in question is not, in view of law, a party-wall. 4th. That the defendants were not bound to give the plaintiff notice of their intention- to cut down and underpin the wall.

The court refused so to charge, and the counsel for the defendant Del Vecchio duly excepted.

The counsel for the defendant Snyder requested the court to charge the jury—

1st. That if they should find for the plaintiff, he is only entitled to such damages as the plaintiff has sustained as reversioner only, after the expiration of the term of the lessee, and the plaintiff has given no evidence of such damages. 2d. That there must be some act as tortious, in which both parties concurred, before they can find for the plaintiff in this joint action. 3d. That as the plaintiff has a covenant to repair by the tenant, with security, the plaintiff is not shown to have sustained any injury in consequence of any of the acts complained of. 4th. That the- mason was under no obligation to give notice of the doing of the work; that if there was any such obligation, it rested with Del Vecchio, and Snyder can not be held responsible for the omission.

The court refused so to charge, and the counsel for the defendant Snyder duly excepted.

The court charged the jury that where an owner conveys land, declaring a wall to be a party-wall, each subsequent- owner of the

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land so conveyed, and of the adjoining land, has a perfect right to have the wall continued as it was, without any alterations, except by his consent, and that if either of such owners should make any alterations to such wall upon his own side thereof, without the consent of the other, he would be liable to such other owner for any damages sustained by reason of such alterations.

To which charge the counsel for the defendants duly excepted.

The court also charged, that if, by reason of the alterations to the party-wall, the plaintiff has sustained damage, both defendants are liable for the whole damage.

G. W. Stevens, for the defendant Del Vecchio,

now moved for the reversal of the judgment, and a new trial, and insisted upon the validity of all the exceptions taken on the trial. He cited, among other authorities, the following: (4 Comstock, 196; 1 Seld. 48; 1 Maule & Selw. 234 ; 5 Cush. 592 ; 4 Exch. Rep. 24; 1 Eng. Law and Equity Rep. 477; 6 Bing. 1; 9 Barn. & Cres., 725.)

H. Brewster, for defendant Snyder.

G. A. Nichols, for plaintiff,

argued at large, that none of the exceptions taken on the trial could be sustained, and insisted, that the charge of the Judge was throughout correct, and in accordance with the rule of law; that a party who contemplates alterations upon his own premises, endangering those adjoining, must give reasonable notice, and is chargeable with all the consequences of a neglect to give such notice; he cited 4 Paige, 169; 9 Barn. & Cres. 725; 1 Cromp. & Jarvis, 20. He also insisted that the plaintiff had an easement in the use of the wall in question by prescription and by grant. He cited 12 Mass. 157 , and Gale and Wansly's case, 9 Barn. & Cres. 148 to 161.

When this case was before the court in October, 1854,^[1] nearly all of the questions raised by the present appeal were presented to the consideration of the court. We regard the- opinion then given as so far conclusive

* Reported 4 Duer, 53 .

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upon those questions, that it is not proper to open them here for discussion. That opinion must therefore be taken as the opinion of the court in relation to all matters embraced therein, or which are impliedly covered thereby.

It was then decided that, in any view of the rights and liabilities of the parties, the plaintiff was entitled to notice of the defendants’ design to take down the wall in question ; but that if it was found that the wall in question was a party-wall, then that the question of notice or no notice to the plaintiff was immaterial, because in that case the defendant had no right to interfere with the wall at all without the plaintiff’s consent, unless he could do so without injury to the plaintiff’s building.

Under what circumstances the wall is to be deemed a party-wall, is stated, so far as is material to the present case, in the following propositions, with the conclusions therefrom :—

“ 1st. If the owner of two adjoining lots erects buildings upon them with a wall partly on each, to be used as a support to both buildings, and which is necessary to furnish such support, and which is used for that purpose from the time of its erection, a conveyance of either house and lot, with its appurtenances, grants an easement, for the support of the house so conveyed, in so much of the wall as stands on the other lot.

“2d. After such a grant and a continued use of such party-wall, to support both buildings for more than twenty years, neither can remove the wall, nor so deal with it as to render it an insufficient support for the other’s building, without his consent. If he does he is liable to the other for the injury.

“ 3d. If either wishes to improve his own premises before the party-wall has become ruinous, or incapable of further answering the purposes for which it was erected, he may underpin the foundation, sink it deeper, and increase, within the limits of his own lot, the thickness, length, or height of the party-wall, if he can do so without injury to the building on the adjoining lot; and to avoid such injury he may shore up and support the original party-wall a reasonable time to excavate and place a new underpinning beneath it.

“ 4th. But he cannot interfere with it in any manner unless he can do so without injury to the adjoining building, or without the consent of the owner of such building.”

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In regard to the rule of damages, in case the plaintiff should be under these propositions entitled to recover, the rule is stated to be that “ he will be entitled to recover such sum as will put him in the state in which he was before the injuryin other words, he is entitled to be “indemnified to the full extent of the injury occasioned.”

Both upon the former trial and upon the present, it appeared that the premises owned by the plaintiff were under lease to the tenant in possession thereof, which lease would not expire until the first day of May, 1856, and that, in addition to the covenant by the tenant for the payment of rent, there was a covenant “ also to make all alterations and repairs at his own cost and expense.”

The evidence upon the new trial ordered by the General Term showed, that the two houses referred to were “ portions of a row of buildings erected previous to 1820, with partition-walls as at present.” Also that Isaac Lawrence, under whom the defendant Del Vecchio holds, conveyed the lot held by the said defendant in 1889, describing the wall in question as a party-wall, and that the administrator of the said Isaac Lawrence, (under authority for that purpose admitted by the defendants,)conveyed the plaintiff’s lot to him. Although the deeds were objected to, it is on this appeal conceded that their admissibility was in substance decided by the General Term by the opinion above referred to.

The evidence was that the defendant Del Vecchio, being lessee of one of the buildings, employed Snyder, his co-defendant, to make alterations, digging down the foundations and lowering the floor, making the cellar also deeper, and in consequence of his doing it, the wall in question settled, and the front and rear walls of the plaintiff’s house were cracked, and that the damage to his building was from $600 to $1,500.

On the trial the defendants offered to prove, each by the other of them, notice to the tenant in possession of the plaintiff’s house, of an intent to make the alterations, and that he assented thereto. The plaintiff’s objection to this evidence was sustained, and we think properly sustained.

First, because this defence, if it was a defence, was not peculiar to either defendant; if good as to either, it was so as to both. But secondly, and quite conclusively, because the assent of the-

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tenant could only affect his right to complain of what was done, and could not prejudice the plaintiff. The tenant had no authority, express or implied, for any such, purpose. He had no right 'to commit waste himself and could not authorize another to do so.

The charge of the Judge appears to us to be in entire conformity to the decision of the General Term, in relation to what constituted a party-wall, and the rights and liabilities resulting from the common interest therein.

It is suggested that the defendant Del Vecchio is not responsible for the acts of Snyder his employee. The cases relating to the liability of a person for the negligence of another, who stands to him in the relation of an independent contractor, and not of servant, have we think no application to the present case. Here one defendant employs and directs the other defendant to commit a trespass. Both are liable for the consequences jointly and severally. The question of negligence was wholly immaterial, or at least it was wholly unnecessary that the plaintiff should prove any negligence. The trespass was committed at the peril of being responsible for all the injury sustained by the plaintiff.

The only other question which it is necessary to notice is, whether the rule of damages was correctly stated to the jury.

The views of the court at General Term on that point are above stated. The charge to the jury was as follows: “That, as the plaintiff had leased the premises before the injury complained of, for a term of years which had not yet expired, and was not in possession of the premises, he could not recover for any interruption in or interference with the' use of the premises, nor because the use and enjoyment of them had been rendered less valuable to the lessee or his tenants.” This is not-the subject of exception, it is within the conceded rule that the plaintiff cannot recover for an injury to the possession merely.

The charge further proceeded, “ that he could only recover for damages to the structure itself.

“ That the jury would inquire what it would cost to repair the injuries done to the building itself and restore it substantially to the condition it was in before it was injured by the acts complained of: that amount, and no more, the plaintiff was entitled to recover.”

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To this last paragraph the defendant’s counsel excepted.

They urge that the plaintiff in his complaint does not describe himself as reversioner, and, therefore, cannot under this complaint recover at all. This point was not only sufficiently disposed of on the former argument, but it appears to us to be without foundation. The plaintiff complains that the defendants’ acts injured his house, damaged its walls, etc., etc., and although he avers that he was disturbed in the use and enjoyment thereof, the other averments are sufficient, though the latter is not proved. If it were deemed necessary to insert the prior condition of the plaintiff’s title in this respect, we should not hesitate to direct an amendment conforming the complaint to the fact proved.

No other objection to this part of the charge is stated, except that because the tenant had covenanted to make all alterations and repairs, therefore the plaintiff cannot proceed against the wrongdoers. We know of no such rule, and no authority is cited in support of the proposition. There can be but one satisfaction for the same wrong, and to that satisfaction the plaintiff is at all events entitled. It does not lie with the wrong-doer to say, “ I will not make compensation to the owner, because he has it in his power to seek redress against another person.”

If it were conceded that the tenant was, under the covenant above referred to, bound to repair damages of this description, caused by a wrong-doer, and that he might, therefore, have had an action for this same injury, the case would not be widely different from the very common examples in which one who has a special property in a chattel, as bailee, may recover against a wrong-doer for an injury done thereto, and yet no one supposes that the owner himself may not maintain the action. It is enough that there can be but one satisfaction.

It has not been claimed that the measure of damages, i. e., the actual cost of repairing the wall, was too enlarged a measure, and probably, on observing that the evidence given is stated in the case to have “ proved ” that the damage was from $600 to $1500, and that the jury found for the plaintiff only $350, the defendants have no occasion to complain of the rule, in fact, adopted by the jury in this respect.

The judgment must be affirmed with costs.