Wear v. Koehler , 150 N.Y.S. 654 ( 1914 )

Page, J. (dissenting).

In the case at bar the defendant was tearing down the building on his land, and had not completely removed the old foundation when the building department notified both the plaintiff and defendant that the plaintiff’s building was unsafe and required them6 ‘ to make same safe and secure by doing all necessary shoring, needling and bracing and underpinning the westerly wall down to the depth of the adjoining excavation.”

The excavation here referred to was the old cellar which extended about three feet below the plaintiff’s foundation wall. The plaintiff'did the necessary work, carrying the underpinning of his building to a depth of ten feet. This action is brought to recover from the adjoining owner the money expended in doing this work.

I cannot concur that at that time there rested upon the defendant any obligation, either at common law or by statute, to do anything to render plaintiff’s building safe. He owed no duty to support the adjoining build-, ing at all at common law, not even if he had excavated1 below the depth of his old foundation. Dorrity v. Rapp, 72 N. Y. 308; Bloomingdale v. Duffy, 71 Misc. Rep. 136; affd., 146 App. Div. 879. Section 22 of the Building Code provides that when a person intends to excavate to a greater depth than ten feet below the curb, “ the person or persons causing such excavations shall at all times, from the commencement until the completion thereof * * * preserve any adjoining wall or structure * * *. “ From the commencement until the completion thereof ” cannot refer to any thing except the excavation contemplated to be made at that time, and cannot possibly refer to any excavation made years before when the original building was erected. In the cases cited in the prevailing opinion (Blanchard v. Savarese, 97 App. Div. 58; Foster v. Zampieri, 140 id. 471), the excavation had been commenced and the intention declared of carrying the excavation thus commenced to a greater depth than ten feet below the curb. Until the defendant commenced to excavate he was under no obligation to preserve any wall or structure on the adjoining property. He had the right to tear down any building erected on his property and, if the adjoining owner had so erected his building that it could not safely stand without the support of the neighboring building, the obligation to take the necessary precaution rested upon him and not on the adjoining owner of the wrecked building.

The order should be affirmed.

Order and judgment reversed, with costs.