Levine v. City of New York , 290 N.Y.S. 953 ( 1936 )

In an action for damages for deprivation of lateral support, negligence and breach of contract, judgment for the defendants dismissing the plaintiff’s complaint reversed on the law and the facts and a new trial granted, costs to abide the event. In our opinion the proof of cost of restoration was competent and constituted a prima facie showing of damages. By offering such proof rather than following the alternative method of showing diminution in value, the plaintiff necessarily implied that such cost is lesser in amount. We are also of opinion that section 261 of the Greater New York Charter does not govern the plaintiff’s first cause of action, based upon deprivation of lateral support. Lateral support is an obligation which arises as an incident to the ownership of real property and its deprivation results in absolute liability, irrespective of negligence. Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.