Earl v. Beadleston — 42 N.Y. Super. Ct. 294

Majority

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JOHN W. EARL, Plaintiff, v. ALFRED N. BEADLESTON, Defendant.

Headnote

I. PARTY WALLS.—TAKING DOWN ONE OF TEE BUILDINGS.

1. RIGHTS AND LIABILITIES OF THE PARTIES RESPECTIVELY INTERESTED THEREIN.

(a.) Neither party can of his own head do or cause anything to be done which will weaken the wall perpendicularly.

(b.) Liability for doing or causing such things to be done.^[1]

1. If ike necessary consequence therefrom is to weaken the wall that interested party who did or for whom the things were done, will be liable for the damages sustained by others; and that whether the things were done by his own hand, or the hands of others hired by him, or by ihe hands of workmen employed by one who had contracted with him to perform the work.

(a.) Respondeat Superior.—Doctrine of does not apply.

2. If the weakening of the wall be not ihe necessary consequence therefrom, but results only from want of care and skill in doing the work, the party interested in the wall is not liable for damages resulting from the want of care and skill, on the part of the workman employed by one who has contract with him to do the work.

(a.) Respondeat Supebior.—Doctrine of applies. I. When not a necessary consequence. The act and operation of tearing down one of ihe two buildings, whose beams rest in the wall, does not involve, as a necessary consequence, the weakening of the walls. It may be taken d own by the use of ordinary care in such manner as to leave the wall as strong as it was.. Therefore, under a contract to "take the build

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ing down,” the owner who gave out the contract is not liable for injuries sustained through the weakening of the wall, by the careless or unskillful performance of the work, on the part of the workmen employed by the contractor.

1. Notice.—Not necessary in such case to give notice of the intention to take down the building.

Before Curtis, Ch. J., Sedgwick and Speir, JJ.

Decided May 8, 1877.

Exceptions ordered to be heard in first instance at general term. Verdict for plaintiff, with stay of entry of judgment.

The plaintiff and the defendant were the owners, respectively, of two adjoining lots with houses thereon. Between these houses was an ancient party-wall, standing equally on the two lots. The house of defendant became decayed and in an unsafe state, and for that reason the department of buildings in the city of New York, being duly authorized therein, notified and required the defendant to take down his house or to make it safe. The defendant thereupon' entered into a contract with one Macgregor, that the latter should take down the defendant’s house. By the evidence, the contract was verbal, and was that Macgregor should “take the building down.”

The action was for damages.to plaintiff from the falling of his building, caused by the party-wall being weakened in consequence of acts of Macgregor’s workmen. By stipulation between the parties in making the case, there was sufficient evidence to support the verdict of the jury on the following points : 1st. That there was negligence on the part of the workmen of Macgregor when engaged in tearing down defendant’s building. 2nd. That the party-wall was weakened by

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the removal of materials therefrom by the workmen when engaged in tearing down defendant’s building, and that the building of the plaintiff fell in consequence of the party-wall having been so impaired and injured. 3rd. That damage resulted to plaintiff from such negligence, and that the amount found for plaintiff was not excessive.

On the trial the defendant asked first that the complaint should be dismissed, on the ground that defendant was not liable for damage caused by the negligence or unskillfulness of the workmen of Macgregor. This motion was denied, and exception was taken. After-wards the defendant asked the court to charge the jury that the defendants were not liable for such damage. This was refused, and exception was taken.

The court in charging the jury, held, “ that the manner of the taking down of defendant’s building, not having been regulated by a contract which preserved the rights of the plaintiff in the party-wall, and no notice having been given to the plaintiff that such work would be done, the defendant is liable for the consequence of the acts of commission and omission of all those when he employed or caused to be employed to tear down his building, in so far as those acts worked an injury to plaintiff’s building. ’ ’ The defendant excepted to this.

The jury found for the plaintiff.

Geo. W. Carpenter, attorney, and Daniel T. Waldon, of counsel, for plaintiff, urged:

I. When buildings are erected with a party-wall between them, each owner has an easement for the support of his building in the whole of the party-wall (2 Washburn on Real Property, 276, 334; Eno Del Vecchio, 4 Duer, 53 ; S. C., 6 Duer, 17 ; Partridge v. Gilbert, 15 N. Y., 601 ; Brooks v. Curtis, 50 Id. 639 ; Dowling v. Hennings, 20 Md. 179 -184).

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II. The adjoining owner is bound to recognize this right of his neighbor, and it is his duty to see that it is not impaired; he may use the wall, or he may add to it and repair it, and remove his building, but he cannot interfere with the wall in any manner, unless he can do so without injury to the adjoining building. So far as his acts tend to affect the party-wall, “he acts at Ms peril, and must insure the safety of his operations (Eno v. Del Vecchio, 4 Duer, 53 ; 6 Id. 17; Brooks v. Curtis, 50 N. Y. 644 , per Rapallo, J., and cases above cited ; Washburn on Servitudes, 572, 573, 575, 576; Hunt on Boundaries, &c., 114, 115, 116 ; Tyler on Boundaries, &c., 355).

III. 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, has no application to this case (Woodruff, J., Eno v. Del Vechio, 6 Duer, 28 ). If the person for-whom the work is done, is under a pre-existing duty or obligation to have the work done in a particular manner, he cannot be discharged from that duty, by creating between himself and another, the relation off-employer and contractor, and so casting upon the latter the burden of Ms own responsibility. He is bound: to see that the duty is performed (Storrs v. City of Utica, 17 N. Y. 104 ; Hole v. Sellingbourne, &c. Railway Co., 6 Hurlst. & Norman, 488, 497; Pickard v. Smith, 10 C. B. [N. S.] 470, 479, 480; Mersey Docks v. Gibbs, L. R. [1 E. & I. Appeals] 93, 114, 115; Francis v. Cockerill, L. R. [5 Q. B] 184; Shearman & Redfield on Neg. [3d Ed.] §§ 15, 85, 175; Wharton on Neg. § 185; Dwight, J., McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y., 186 , 187, &c., &c. ; Hunt on Boundaries, 116, 117).

IY. The defendant in this casé was entirety unmind-ful of his duty to his neighbor ; he authorized a third, party to remove the building, and gave him- as comp

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ensation the old materials; the agreement was broad enough to include and permit the contractor to take away the party-wall, with all the materials in it; certainly to remove the materials of the building which were in the wall. His workmen did remove such materials from the party wall; thus weakened it and caused the plaintiff’s building to fall. The defendant did not in any way obligate the contractor to respect the rights of the plaintiff, or take any precaution that he should not be interfered with; he left the contractor to do as he pleased ; and even invited him to remove all the materials he could, by giving them to him as a reward for his labor. The contractor acted within the terms of Ms employment, and the defendant is responsible as if he did the act himself. “ When the injury results directly from the acts which the contractor agrees, and is authorized to do ; the person who employs and authorizes him to do those acts, is equally liable to the injured party” (Ibid. ; Ellis v. Sheffield Gas Co., 2 E. & B. 767; Water Co. v. Ware, 16 Wall. 576 , per Clifford, J. ; Robbins v. Chicago, 4 Id. 679 ; Packard v. Smith, 10 C. B. [N. S.] per Williams, J., 480 ; Wharton on Neg. §§ 186, 187).

Y. The plaintiff’s consent was not asked or obtained, nor was the plaintiff notified, that the defendant intended to clo the work, and the plaintiff did not know that the building was being’ taken down, until after it was taken down. The defendant was bound to give notice to the plaintiff, evén if necessity existed to remove the wall; and removing it without such notice, makes him liable for all such consequences which might have been averted (See cases above cited; Partridge v. Gilbert, 15 N. Y. 601 ).

R. W. Townsend, attorney, and A. R. Dyett, of counsel, for defendant.

There is no denial that the defendant had the right at his pleasure to take down his own house, excepting such part of it as was portion of the party-wall, and the ends of the beams in the wall. If the weakening of the party-wall perpendicularly was a necessary consequence of the taking down of the house, then, the party-wall itself not having fallen into decay, the defendant would be responsible for the damage, whether he hired workmen to pull the building down or did it through a contract. If it were not a necessary consequence but a highly probable one ; for instance, if it would follow, unless precautions, beside care and skill were taken, then, whether the defendant would not have been bound to take these precautions, or at least to have given notice to the plaintiff that he might take them, is not a question in this case. There was no proof as to the probable consequences of taking defendant’s building down, and there is no inference to be drawn from the fact of a building having its beams in a party-wall that it could not be done without weakening the wall or taking out the ends of the beams in the wall. So the case is that the building might be taken down by the use of ordinary care, and the wall be left as strong as it was ; and the immediate question is, if the defendant made a contract with Macgregor to take the building down, is the defendant responsible for the workmen of Macgregor weakening the party-wall by their negligence or unskillfulness. I think the answer must be that the negligence was the negligence of Macgregor, and not of the defendant. Macgregor’s workmen were his servants. They were not the servants or agents of the plaintiff.

Button v. Hunter, 7 Hurl. & N. 726 (1862) was cited in McCafferty v. S. D. P. M. R., 61 N. Y., 183 , by the judge delivering the opinion of the court. The case applied well-known principles, and may properly

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be used to determine the present case. The defendant was the owner of a house adjoining the plaintiff’s house, and between the two houses was an ancient party-wall. The defendant made through his architect a contract with another to have the front wall of defendant’s house taken down. In this front wall was a breast-summer,^[1] which extended six inches into the party-wall and proper workmanship required that before the breast-summer be removed, the plaintiff’s house be shored. The contractor through Ms workmen took out the beam without shoring up, which caused plaintiff’s house to be injured. It was adjudged that the defendant was not liable, on the ground ‘ ‘ that there was no evidence that the defendant stood in the relation of master and servant to the persons whose negligence caused the injury.” The judges considered the proposition, “that where a person employs tradesmen to do a work which may be dangerous to another, he is bound to show that he directed all care to be taken, and specifically pointed out in what way the danger was to be guarded against, or at all events did enough to exempt himself from responsibility,” but said that “it must be assumed that directions were given in the ordinary way, and to take all proper precautions not to do mischief.” It was further remarked that it “is said that the defendant ought to have given orders to do the work in a tradesmanlike manner, or ought to have pointed out wha,t was required. But it seems to me, that it would be unreasonable to require an unskilled person to point out to a skilled person in what way the work should be done. I think that, as matter of fact, if a man gives an order to a tradesman to do

* Breast-summer is a summer or beam placed breast-wise to support a superincumbent wall used principally over shop-windows to carry the upper part of the front, and supported on posts of columns.—Webs.

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some work, he means to do it in the ordinary trades-manlike way.”

The substance of these considerations, as applied to to this case is, that the defendant had contracted to have the house pulled down in a manner that would not have been an injury to plaintiff’s rights. The contract therefore does not make him liable. When the contractor’s servants went beyond this contract, and damaged the wall by unskillfulness, they had not been thereunto authorized by plaintiff, and were not his servants or agents.

If the plaintiff’s contract had been, that the building, including a part of the party-wall, sho uld be taken down, of course there would have been responsibility for damages ; but the court, on the evidence, properly, in his charge to the jury, assumed that the contract did not refer to the party-wall.

The liability of defendant has been stated as if he, of his own head, had taken down his building. The fact was, that he did it in obedience to the direction of a public officer. The specific duty thereby created did not enlarge the duty he was before under to the plaintiff.

I do not see that the parties’ rights are affected by the defendant not giving notice to the plaintiff of Ms proposed action. The defendant was enjoying a right of property which, on the evidence, was not likely to cause damage to plaintiff. There was nothing to be done by plaintiff in the matter, to avert events which were not anticipated, or likely to happen.

I am of opinion that the exceptions should be sustained, and a new trial had with costs to the defendant to abide the event.

Curtis, Ch. J., and Speir, J., concurred.

Cases cited

Storrs v. City of Utica 17 N. Y. 104 N.Y. p. 297
Partridge v. Gilbert 15 N. Y. 601 N.Y. p. 298