Barnes v. Masterson

38 A.D. 612 | N.Y. App. Div. | 1899

Cullen, J. :

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 defendant 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 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 timé the deposit of sand was continued until the eighteenth day of December, at which time the pressure of sand, it being some eighteen or twenty 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 proj)erty 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 canned to an extreme, and we do not say that where a man leans his walking stick or a stepladder against his 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 v. Evans, 37 N. Y. St. Repr. 714.) The action is brought not for a trespass or a nuisance, but for negligence. Wé do not see, however, that the form of the action has any very material bearing oh the case, for the deposit of sand against the plaintiff’s wall-so as to injure or destroy it might be charged as negligence as well as a trespass, and the jury have found it to be such by their verdict.

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, bat nevertheless it was essentially a contributing cause to the injury. In such, a case, 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 id. 319.)

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 the 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 constantly renewed and the same answer given. After the injury had been occasioned the plaintiff said to the defendant, “Youhave done exactly what I told you you would; * * 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 Fogarty 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 pretended transfer seems to us quite suspicious, and the truth of the story was properly left to the jury to determine,

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

All concurred.

Judgment and order affirmed, with costs.