125 N.Y.S. 361 | N.Y. App. Div. | 1910
The cause of action alleged in the complaint is to recover the damages sustained by the plaintiffs as the owners of Nos. 88 and 90 Walker street, in the city of New York, caused by the excavation upon the adjoining property owned by the defendant for the erection of a building upon the defendant’s property, which excavation exceeded more than ten feet below the curb.
The answer admits the ownership of the. premises upon which the excavation was made by the defendant and the erection thereon by him of an eight-story building. The answer then denies the other allegations of the complaint; and “for a second separate, distinct, affirmative defense to the said complaint ” alleges that on or about the 11th day of July, 1907, the defendant entered into a contract in writing with one Duffy, who thereby agreed to make the excavation on the premises known as 92 and 94 Walker street according to specifications to be furnished; that the said specifications were fur- “ nished to Duffy, which provided that the depth of said excavation should be ten feet below the curb, and that all excavations were to be properly protected as required by law, and that said Duffy took possession of and had entire and exclusive control and management of the work, workmen and furnishing of materials under Ms con
The rule is well settled that each separate and distinct defense must be complete in itself, and if each separate and distinct defense does not state facts which would be sufficient to defeat the plaintiffs’ cause of action, or some part thereof, it is not sufficient upon demurrer. By section 1 of chapter 6 of the Laws of 1855 it was provided that whenever excavations commenced for building or other purposes on any lot or piece of land in the city and county of Rew York shall be intended to be carried to the depth of more than ten feet below the curb, the person causing such excavations to be made should at all times from the commencement to the completion thereof, if afforded the necessary license to enter upon the adjoining land, preserve any adjoining or contiguous wall from injury, and support the same by proper foundations. Under this statute it was held in Dorrity v. Rapp (72 N. Y. 307) that the owner of a lot adjoining a building was the person who caused the excavation to be made when such excavation was made under a contract with a third party; and the fact that such a contract was made did not exempt the owner from the-performance of the duty imposed by statute. This act of 1855 was re-enacted as section 474 of the Consolidation Act (Laws of 1882, chap. 410), and, as amended by chapter 456 of the Laws of 1885, chapter 566 of the Laws of 1887, and chapter 275 of the Laws of 1892, which latter statute also placed the provisions in section 473 of the Consolidation Act, remained in force, pursuant to section 647 of the Greater Rew York charter (Laws of 1897, chap. 378), until the enactment of the Building Code of the city of Rew York. (See, also, Revised Greater Rew York Charter [Laws of 1901, chap. 466], § 407, as amd. by Laws of 1904, chaps. 602, 628.) Section 22 of the Building Code, which took the place of this provision of section 473 (former section 474) of the Consolidation Act, provides that: “ Whenever an excavation of either earth or rock for building or other purpose's shall be intended to be or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times, from the commencement until the completion thereof,
I think it clear, therefore, that making the contract for the excavation does not relieve the owner of the property from the obligation imposed by the section of the Building Code in question.
It follows that the defense was not sufficient and that the judgment should be affirmed.
Clarke, Scott, Miller and Dowling, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to amend on payment of costs.