46 A.D. 204 | N.Y. App. Div. | 1899
. The plaintiff and the appellant are the owners of adjacent tracts of land fronting upon Jamaica Bay. The appellant erected a bulkhead in front of its- upland, and entered into a contract with the defendant Packard for dredging the bay in front of the bulkhead and for filling in the land in rear of the bulkhead with the material taken from the bay. The plaintiff brought this action, complaining that, by the operations of the defendants, the beach in front of his land was covered with refuse matter and mud, and praying for an injunction. After a hearing an order was made by the Special Term
The learned counsel for the appellant contends that the evidence does not show that there was any violation of the injunction. He admits that the work of dredging and filling was renewed, but asserts that it was carried on in such a manner as not to cast any mud or offensive materials on the plaintiff’s land. By the record before us it appears that the referee, on the consent of both parties, made a personal inspection of their premises. As his report is the result of such inspection, as well as of the testimony taken by him, it is impossible for us to review his determination founded on- his personal observation.
It is further contended for the appellant that the defendants Packard are independent contractors, and that for any injury they may do to the plaintiff in the prosecution of the work the appellant •cannot be held-liable. If the injury to the plaintiff proceeded-from the manner' in which the Work was being done, as distinguished from the doing of the work itself, this claim would undoubtedly be well founded ; but the trouble with the appellant’s claim is this: All that the Packards have contracted to do is to dredge in front of the bulkhead and deposit the material in rear of it. The contractors are, under the contract, under no obligation to secure the material which they deposit from falling off on the adjacent land. The reason that plaintiff’s beach is invaded by refuse and mud, if such be the case, as we must assume, is because on the division line between the lands under- water belonging to the appellant and those belonging to the plaintiff, the crib work and sheet piling -is not constructed sufficiently
The order appealed from should be affirmed, with ten dollars-costs and disbursements.
All concurred, except Goodrich, P. J., not sitting. '
Order affirmed, with ten dollars costs and disbursements.