Finegan v. Eckerson, 52 N.Y.S. 993

52 N.Y.S. 993 | N.Y. App. Div. | 1898

Willard Bartlett, J.:

This is a suit in equity, tlie purpose of which is to obtain - a per-' manent inj.unction restraining the defendants from making excavations upon.lands occupied by them in the village of Haverstraw to such an extent as to endanger the neighboring premises in the possession of the'plaintiff. According to the complaint, the plaintiff is in possession of certain premises situated on Rockland and' Jefferson streets in that village. Upon these premises stands a valuable' build-. ing, containing a dwelling and business apartments. The lands thus occupied by the plaintiff, together with the neighboring lands occupied by the defendant Eckerson for the manufacture of brick, were formerly, part of a large tract belonging to a common owner, who laid out this -tract into lots and streets, and made conveyances of thé lots occupied by the parties to this action, describing them as bounded . upon such streets, and referring to a map thereof which was filed in the office of the county clerk of Rockland county. The complaint* ■which was verified on the 24th day of May, 1898, alleges that the defendants have recently dug and excavated upon the land of the defendant Eekerson to a great depth near the corner of Jefferson and Rockland streets, and so near those streets as to cause the same to subside to a depth of from fifty to sixty feet, within about eighteen feet from-the plaintiff’s building, and that, as the plaintiff is informed and believes, they intend to excavate further, by reason of which acts the building of the plaintiff is in imminent danger of sliding down the embankment which has thus been created. Upon the complaint and an affidavit of the plaintiff, stating that the allegations therein contained were true, an application was made to the ■ Special Term for a temporary injunction. The motion was opposed by the defendants, who preseuted.affidavits tending to show that the subsidence of the soil, which the complaint described as having occurred near the corner of Jefferson and Rockland streets, was not due to any excavations upon the Eekerson property. These affidavits also positively asserted that no .material had been excavated from the Eekerson property during the last three years within 250 feet of the point where said subsidence occurred. The learned judge at Special Term thought that the injury to be apprehended by the plaintiff seemed to be real and serious, and concluded to grant the desired restraining order, although he was of the opinion that the affidavit and complaint lacked particularity as to the date of the excavation which caused the subsidence of the street.

The right of the plaintiff to prevent any excavation on neighboring land which will cause a subsidence or destruction of the highway in front of the premises in her possession, is clear. (Milburn v. Fowler, 27 Hun, 569.) So far as the lateral support of the soil is concerned, in its natural state, without the burden of any buildings upon it, the occupant of land may also be protected by injunction. (Trowbridge v. True, 52 Conn. 190.) The right of lateral support, however, between, the owners of contiguous lands, in the absence of statutory regulation, does not extend to buildings. (Lasala v. Holbrook, 4 Paige, 169; Dorrity v. Rapp, 72 N. Y. 307.) Assuming that there was sufficient evidence before the court at Special Term that the defendants threatened or intended to carry on any excavations which would tend further to lower the streets opposite the plaintiff’s premises, or to cause a subsidence of any part of her land, irrespective of the buildings thereon, a condition of things was established which called for injunctive relief during the pendency of the action.

Although the moving papers might well have been more specific in stating when the plaintiff acquired possession, we are disposed to agree with the learned court below, that this defect is not so substantial as to require the refusal of a restraining order.

It is insisted in behalf of the appellants that the allegation of the defendants’ intent to dig or excavate further, being made' only on information and belief, without .disclosing the source of information or the grounds of belief, should be deemed a nullity ; but as we find no denial of such alleged intention" anywhere in the opposing affidavits, we think its existence was properly assumed for the purposes of the motion.

On the whole, we think the interests of justice will be subserved by continuing the. injunction until, the case can be tried on the merits. Inasmuch, however, as it is suggested in behalf of the appellants that the. effect of the order may be to inflict serious injury upon their brick-making industry during the summer, we think the order should be modified by requiring the plaintiff to stipulate to try the action at one of the Saturday Special Terms to be held during the summer, either in Orange county or Dutchess county, if the defendants so desire.

All concurred.

Order affirmed, with ten dollars costs and disbursements to abide the final award of costs, on condition that the plaintiff stipulates to-try the cause at one of the Saturday Special Terms to be held during the summer, either in the county of Orange or Dutchess, if the defendants so desire.