113 N.Y.S. 1017 | N.Y. App. Div. | 1908
The defendant The Excelsior Brick Company owns a plot of land on the west bank of the Hudson river at the village of Haverstraw, which extends west to Rockland street, and lies between Division and Clinton streets, which run from the river to and across Rock-land street about 200 feet apart, Rockland street running north and south, and Division street being to the south of Clinton street. The said defendant excavated this land for the purpose of taking out clay to make bricks. Prom Clinton street south toward Division street the crest of the excavation came up to the street line, and thence diverged along until at and near the corner of Division street it was about 53 feet from the street line; and thence the crest line bowed around the angle of Rockland and Division streets, and then gradually drew in toward the street line of Division street until it touched it. The excavation was about 70 'feet deep along Division street and 55 feet along Rockland street, and sloped downward from the crest, the base of the section being about 55 feet wide. Division street at and near the corner of Rockland street caved into the excavation, and about 15 minutes later Rockland street at and near the said corner caved .in also. The plaintiff’s intestate was on Rockland street, and was carried into the excavation with the slide and killed. The briefs of all the parties concur in saying that the ob ject of the court in dismissing the complaint at the close of the plaintiff’s case was to get an expression of the views
The owners or tenants of the next two plots of land to the north were also made defendants for no apparent reason, which added to the confusion. Nor was any case made against the director and superintendent of the said defendant The Excelsior Brick Company.
The judgment should be reversed as to the defendant The Excelsior Brick Company, and affirmed as to all of the other defendants.
Woodwarb, Jerks, G-ayror, 'Rich and Miller, JJ., concurred.
Judgment reversed as to the defendant The Excelsior Brick Company, and new trial granted, costs to abide the event, and affirmed as to the other defendants, with costs.