Butler v. Cushing ( 1888 )

Barnard, P. J.

A re-examination of this case fails to show any ground tor a reargument. The case was tried upon the theory that the plaintiff must .recover, if at all, upon proof of negligence by the defendant or his servants which occasioned the injury, and upon proof that the accident was not occasioned by the neglect of the plaintiff. Under the strict rule, we thought that the evidence w.as abundant to uphold a verdict in favor of the plaintiff, It was shown that the defendant, without warning to his tenants in the upper part of the building, threw the building suddenly down; that this was the result of an attempt to raise the interior partitions so as to make level the floors. There was proof from which the jury could find negligence in the methods used to do the work itself. We also thought that, in such a case as this, where the owner undertook to raise a building rented to tenants under fixed terms, and during the lease, without notice to them, and without their assent, such owner took the risk of his acts; that such owner could not, even with an honest intent to repair a portion of the building not rented, escape liability, where he prostrated the building thereby, by an averment that the work was carefully done. The cases cited by defendant upon this motion do not, as we think, change this result. The motion should therefore be denied, with $10 costs.

Dykman, J., concurs.