28 Abb. N. Cas. 154 | The Superior Court of New York City | 1892
The defendant, under a contract with, the city, is excavating a sewer in front of plaintiff’s property. The power exercised is vested in the municipal, authorities by express statute (Consol. Act, 1882, § 878). The act of 1855, ch. 6, respecting excavations, re-enacted in 1882 (Consol. Act, 474, amended in 1885,. ch.456; 1887, ch. 566) applies to “adjoining owners” only, concerns private rights and obligations—not public functions—and affords the plaintiff no remedy for the acts complained of. Motion to continue injunction denied.
Note.—Duty of excavating owner to protect neighbor's house. Under the Act of 1855, ch. 6, an owner of property in the cities of New York or Brooklyn excavating below ten feet, was bound tO' protect his neighbor’s wall, provided it extended downward to the depth of ten feet. At common law no such obligation existed. ( See cases collated in McAdams’ L. & T., 2d ed. 516). The Act of 1855, supra, was re-enacted and made § 878 of the N. Y. Consolidation Act of 1882 and was amended in 1887 (§ 3, ch. 566,) by requiring an owner excavating below ten feet to protect his neighbor’s wall, “ whether said adjoining wall is down more or less than ten feet below the curb." This change is deemed of sufficient, importance to be noted in connection with the decision reported.