Parish v. . Baird , 160 N.Y. 302 ( 1899 )

The plaintiff recovered damages for an injury to the real property of the testator, for which it was held that the defendant Baird was responsible. It appears that the deceased owned a valuable building used for a store and offices at the northeast corner of Seventeenth street and Broadway in the city of New York. The building had been constructed with vaults extending out under the sidewalk of Seventeenth street by permission from the city authorities. Over the vaults the owner had constructed a sidewalk of stone flagging, consisting of large flat stones specially made, prepared and finished for that purpose. Those stones had to be fitted together with considerable care and exactness in order to make a sidewalk that would be both useful and ornamental. The walk was supported by iron beams and girders extending across the the vault supported by iron columns and brick arches.

In the year 1893 the defendant was engaged in repairing the street or roadbed in front of this building under a contract with the city which required him, before disturbing or making any alteration in the old roadway, to haul upon the line of the work at certain points, to be designated, a "sufficient quantity of stone blocks and bridge stones for the paving of at least the space between any two intersecting streets," and permitted him, after the inspection of such stones, to pile the same on the sidewalks along the line of the work.

The testimony on the part of the plaintiff tended to show that the defendant, before beginning the work, caused the stones to be used in paving the street in front of plaintiff's premises to be brought upon the ground, but instead of unloading such stone in the street and then piling the same "neatly on the front of the sidewalk," as he was required by his contract to do, he caused the same to be thrown or pitched to the sidewalk from the heavy two-horse wagons which brought them. After several loads had been brought the defendant's employees piled up a wall of the stone near the building and another wall along the curb line, thereby making a large bin, which they filled with other stones brought afterward and thrown in as before. It was observed by the plaintiff's agent, and by others, that this proceeding was injuring the sidewalk.

The plaintiff's agent notified the parties in the employ of the defendant that they were injuring the sidewalk by the manner in which they were unloading the stones and piling them on the walk, but no attention was paid to this. Before the walk was used for unloading the stone and as a place for piling them, it was in substantially the same condition as when first laid, but when the paving blocks were removed it was found to be injured. Some of the flagstones were found to be broken and the joints, which were originally cemented, were in some cases opened. All this, it was claimed, resulted from the acts of the defendant, either in unloading the heavy blocks of stone with too much violence, or in placing too great a weight upon the walk. The case seems to have been tried upon the theory that there was negligence on the part of the defendant in unloading and piling the stone, and upon that theory it was submitted to the jury and a verdict for the plaintiff was found. The judgment was affirmed at the Appellate Division, and the decision was unanimous. On the question whether the proof sustained or tended to sustain the verdict we are concluded by this decision. The defendant must upon this appeal rely upon his exceptions at the trial directed to other questions than the sufficiency of the evidence to carry the case to the jury.

It is true that the walk was in the street and not upon the plaintiff's land, and it may be that he could not sell or remove it, but as between himself and the city he was primarily liable for its construction and maintenance. It was built at his expense, in the discharge of a duty or obligation, imposed upon him by law. It must be maintained at his expense, and hence the destruction of it or any injury to it by the wrongful or negligent act of another is the plaintiff's loss and, so far, an injury for which he may demand redress. Moreover, the vault over which the walk was laid and of which it was a part, was an easement appurtenant to the plaintiff's property, and in itself a species of property which the plaintiff may protect as fully as any other property. Hence the plaintiff may recover damages from any one negligently injuring the walk, rendering its repair or rebuilding necessary. (Bidelman v.State, 110 N.Y. 232; Rogers v. Randall, 29 Mich. 41;Trustees, etc., v. Foster, 156 N.Y. 354.)

The measure of damages for an injury of this character is the cost to the owner of the building of restoring the walk to its original condition, and proof of that fact was properly received. (Hartshorn v. Chaddock, 135 N.Y. 116; Sutherland on Damages, 1883, vol. 3, p. 373.)

The defendant called a witness and asked him to give an opinion as to whether it would be possible to break the flagstones on the walk if they had been laid as described and were of good material by piling the stones upon it. The answer was excluded under the objection of plaintiff's counsel. There was no error in this ruling. Whether the damage to the walk was the result of the use made of it by the defendant in unloading and piling the granite blocks upon it, or whether it resulted from some other cause, was a question to be determined by the jury, and it did not involve any question of science or peculiar skill calling for expert testimony, but, even if it did, the witness was not shown to be an expert.

There was some other proof offered by the defendant and excluded, calling for the opinion of witnesses not shown to be experts, as to the probable cause of the injury to the flagstones in the walk. The questions all called for an opinion on the point whether the damage could have resulted from the use of the walk by the defendant or from some defect in the construction of the same or the material used. There was no error in the ruling excluding the answers to questions of this character. They did not call for any fact bearing on the question but the bare opinion of the witness. There are no other exceptions in the case that require notice, and so the judgment should be affirmed, with costs.

All concur, except PARKER, Ch. J., not sitting.

Judgment affirmed.