88 N.Y.S. 976 | N.Y. App. Term. | 1904
The complaint was rightly dismissed. The building being erected for the use of the express company of which defendant is president was under construction by an independent contractor, and all the damage said to have been done to plaintiff’s building was so done by the workmen of the contractor. For these acts the express company was not liable. Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197, 24 L. R. A. 102. The only item of damage as to which the express company’s liability is even debatable is that based upon the freezing of plaintiff’s water pipes, said to be the result of piercing his wall so as to insert needles to sustain it. This liability is asserted because of an alleged agreement "made for the express company, by its architect, to the effect that, if plaintiff would permit an entry upon his premises'in order to shore up his wall, his water and sewer pipes would be protected from freezing. Even if the plaintiff has any claim against the express company on this ground, it cannot be asserted in this action. The pleadings are written, and it is consequently possible to determine with accuracy .the nature of the action, which, upon an inspection of the complaint, is found to be for damages for trespass. Nowhere is there to be found any allegation of any special contract or agreement on the part of the express company. Obviously, in an action for trespass, a complainant cannot recover for breach of a contract, especially where, as in the present case, no contract is pleaded, and no amendment of the complaint was had. Roemer v. Striker, 142 N. Y. 134, 36 N. E. 808. Even if such a contract had been properly pleaded, and the authority of the architect to make it and thereby bind the express company was to be assumed, it would be difficult to see upon what consideration it rested. The plaintiff seems to assume that consideration is afforded by his consent to an entry upon his property to shore up and protect his wall. That consent was applied for, however, not for the benefit of the express company, but for the plaintiff’s benefit. At common law no duty rested upon the owner of a lot making an excavation thereon to protect his neighbor’s wall from injury. He was only bound to exercise reasonable care in making the excavation, so as to do no unnecessary damage. Dorrity v. Rapp, 72 N. Y. 308. Whatever obligation now rests upon an owner excavating his own land to protect the wall of an adjacent building is to be found in chapter 6, p. 11, of the Laws of 1855, which imposes upon lot owners
Judgment affirmed, with costs. All concur.