117 N.Y.S. 761 | N.Y. App. Div. | 1909
Lead Opinion
There is sufficient evidence in the case, if believed, to sustain a finding against the defendant under the provisions of section 22 of Building Code of the city of New York. This code has the same force and effect as a statute. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 407, as amd. by Laws of 1904, chaps. 602, 628; City of New York v. Trustees, 85 App, Div. 355; affd., 180 N. Y. 527.) The defendant, who was engaged in the construction of a building upon premises adjoining those of plaintiff, testified that the depth of his excavation was twenty feet below-the curb at the front of his building and eleven feet at the rear, and that in constructing his new building he used the party wall, on the top of which he.constructed a new wall to a height in all of one hundred and thirty-six feet. The plaintiff’s house had four stories and a basement. The building constructed by the defendant was an eleven-story office and loft building. There was an issue as to the condition of the party wall at the time the defendant commenced
The judgment and order must be reversed and a new trial granted, costs to abide the event.
Bubr, J., concurred ; Oraynor, J., concurred in separate opinion;
• Hirschberg, P. J., and Miller, J., dissented.
Concurrence Opinion
(concurring):
It is provided by section 22 of the Building Code of the city of Mew York (1) that when excavation for the purpose of erecting a building shall be made deeper than 10 feet below the curb, the person causing the excavation to be made, i. e., the owner or lessee doing the work, shall, at his own expense, preserve the adjoining wall and structure “ from injury, and'support the same by proper foundations, so that the said ” wall and structure “ shall be and remain practically as safe as before such excavation was commenced” ; and (2) that if there be a party wall which is to be used, “ and such party wall is in good condition and sufficient for the uses of the adjoining building”, such person causing such adjoining excavation shall at his own expense “ preserve such party wall from injury, and support the same by proper foundations, so that said party wall shall be and remain practically as safe as before the excavation was commenced.”
The complainant alleges that the defendant did not do these things, and injured his building. It is true that it charges the acts
The complaint does not plead the said section, of the Building Code, or allege the violation of any duty imposed by it. But that was not necessary. It is never necessary to allege the law, common or statute, which makes the defendant liable. The way is to allege the acts or omissions which did the injury, and if they were a breach of duty, whether by common law or by statute matters not. In either case, and the same in each, .the law is not pleaded but only cited -to the court on the trial to show the acts or omissions which are breaches of duty. It is true that when an action oí defence is “founded on” a private statute, which phrase embraces city or local ordinances, the private statute or ordinance has to be pleaded, except where it has been referred to and recognized by a public- statute, in which case the courts will take -notice of it the same as of public statutes, without it being pleaded (20 Encyc. Pl. & Pr. 597); and that is the case with this Building Code (N. Y.
Judgment and order reversed and new trial granted, costs to abide the event.