134 N.Y.S. 832 | N.Y. App. Div. | 1912
Lead Opinion
In 1905 the defendants Eidlitz,. as general contractors, were engaged in erecting a large building between Thirty-fourth and Thirty-fifth streets on the east side of Fifth avenue in the city of New York. In carrying out the contract it became necessary for them, in order to make proper sewer connections with the building to be erected, to dig a tunnel under the roadbed of Fifth avenue parallel to the curb from about the center of the building to be erected to a point some sixty feet south of Thirty-fourth street. To do this work they sublet a contract to one Byrne, who, in turn, sublet it to the defendant Pilkington. Thereafter the city issued permits for the work and Pilkington started excavating at the southerly end, and on January 5, 1906, had proceeded about forty feet when a large water main which ran down Fifth avenue close to the tunnel
" I am of the opinion that the disposition made by the trial court is correct. First,; as to the defendant Pilkington. There is ample evidence to support the finding that the break in the water main was caused by the negligent manner in which the tunnel was constructed. The city gave its permit to construct, according to a plan, a tunnel, which was to be between four and five feet wide, of about the same height, and to run parallel to and about four feet westerly of the easterly curb of the avenue. Had this plan been followed, the tunnel would not, at any place, haive been within eight feet of the main which was broken. The plan was not followed. It seems to have been abandoned and the tunnel dug some ten feet farther to the west, which brought it under one large water main which should have been parallel to it, and, according to the plain
Second, as to the City of New York. Its liability is based upon two claims: (a) That it did not see to it that the plan was followed and that the work of excavation was done in such a way as to prevent injury to third parties, and (b) that it did not use proper diligence in turning off the water after it had been given notice of the break in the pipe. The judgment could not be sustained upon the first ground, because there was no duty resting upon the city to supervise the work. It is true the city, through the bureau of sewers, issued a permit to make the excavation, hut the permit was to construct a tunnel running parallel to and about four feet westerly from the easterly curb of the avenue, and that the work was to be done under the direction of the chief engineer of sewers. But
Nor does the fact that the city reserved to itself the right to direct the work through its chief engineer of sewers change the rule, because, as a matter of fact, he never attempted to direct it (Uppington v. City of New York, 165 N. Y. 222), or because it issued permits for the sinking of shafts from the surface of the
Third, as to the defendants Eidlitz. The finding of the jury that the damage sustained by the plaintiffs was due to their negligence is against the evidence, and for that reason the
Finally, as to the damages, I think there was an abundance of evidence to sustain the jury’s finding on that subject and I am also of the opinion that the extra allowance of costs was properly granted.
The judgment and orders appealed from, therefore, are affirmed, with costs to the plaintiffs against the appellants, the City of New York and Pilkington, and with costs to the defendants Eidlitz against the plaintiffs.
Laughlin, Miller and Dowling, JJ., concurred; Ingraham, P. J., dissented as to the city.
Concurrence Opinion
I concur, except as to City of New York, and as to the city I think there should be anew trial.
Judgment and orders appealed from affirmed, with costs to the plaintiffs against the appellants, the City of New York and Pilkington, and with costs to the defendants Eidlitz against the plaintiffs. Order to be settled on notice.