Foster v. Zampieri ( 1910 )

Ingraham, P. J. (concurring):

I concur in the affirmance of this judgment. I think, however, that both clauses of section 22 of the Building Code can be read together, and that they are not inconsistent. The intention is to fix the responsibility for an excavation which a person makes upon his own property. If the excavation be not more than ten feet, the owner of the adjoining property liable to be injured by it must protect his building, and the person making the excavation is not responsible for any damages. Where, however, a person commences an excavation of more than ten feet, then the owner of adjoining property is relieved from protecting his building. And to give effect to this provision it is provided that where the intention of extending the excavation for more than ten feet is announced, and no notice is given of a change of intention, then the owner of the adjoining building can rely upon such an intention, and that the person causing the excavation will take the necessary steps to protect the adjoining property. The subsequent clause was not, I think, intended to limit the liability in the 1st clause of the section, but to provide that in case the person causing the excavation neither intended to nor actually did carry it down more than ten feet, then the adjoining owner was bound to protect it. When the object sought to be attained is considered, I think the section could be given a meaning by which that intention would be effected. Where there is a clearly-defined intention disclosed of excavating over ten feet, and nothing is said or done from which an adjoining owner can have notice that that intention had been changed or abandoned, it would seem to be just to hold the person causing the excavation liable, as because of this declared intention made by the person causing the excavation the owner of the adjoining property had not taken the necessary steps for his own protection.

I, therefore, concur in the affirmance of this judgment.

Judgment and order affirmed, with costs.