Blanchard v. Savarese

Williar Barlett, J. :

The plaintiff was the tenant of a factory building in the borough of Brooklyn, under a written lease. The defendants were the owners of an adjacent lot, on which they proposed to make an excavation which, according to the application filed in the bureau of buildings, was to have been only five feet below the curb.

Under section 22 of the New York Building Code, whenever an excavation shall be intended to be carried or shall be carried to a depth of more than ten feet below the curb, the person or persons causing such excavation to be made are required at all times from the commencement until the completion thereof, if afforded the necessary license to enter upon the adjoining land, and not otherwise, at his or their own expense, to preserve any adjoining or contiguous wall or walls, structure or structures, from injury, and to support the same by proper foundations, so that they shall be and remain practically as safe as before the excavation was commenced. (Building Code, enacted pursuant to Greater N. Y. charter, § 647.)

After the defendants had begun the excavation on their lot they applied do the plaintiff for permission to enter upon the factory property occupied by him and support the wall thereof. The plaintiff communicated with his landlord, the owner, who said it was all right, and the plaintiff then directed his foreman to tell the defendants or their representative that they could come in on the factory property and do anything they pleased. The plaintiff subsequently saw one of the defendants, Mr. Vincenzo Savarese, and complained to him that the wall was hot being safely supported, calling his attention to a large opening therein; in response to which Savarese said: “ That is all right; if there is anything wrong I will attend to it.” On the next day after this interview the wall collapsed. In the present action the plaintiff has recovered damages for the injury to his goods and for the loss of profits in liis'business, occasioned by the negligence of the defendants in failing properly to sustain the factory wall.

It will be observed that under the New York Building Code the obligation to sustain an existing wall adjoining land upon which an excavation is proposed to be made exists, not only where the excavation is actually carried to' a depth of more than ten feet below the curb, but also where the intention is to carry it to such depth. The evidence of such intention is naturally to be found in the declarations or actions of the parties who propose to make the excavation. They may say in so many words that they mean to

carry it to a depth in excess of ten feet. If they said so to the owner of the adjoining building, and accompanied the statement by a request for a license to enter his premises, under the Building Code the adjacent owner would be obliged to afford such license or suffer the consequences. But the intention may be manifested by implication as well as by express declaration. An adjacent owner can hardly be expected to search in the records of the bureau of buildings in order to ascertain whether his neighbor means to dig more than ten feet below the curb or not. If that neighbor, having no occasion or right whatever nor any obligation to come upon his premises or support his wall unless he intends to excavate more than ten feet below the curb, applies to him for permission to come into his building and shore up the wall, and proceeds actually to ■avail himself of such permission and undertakes to work, it seems to me that these circumstances are equivalent to an expressly declared intention to carry the excavation to a greater depth than ten feet. It follows that if the proprietor of a building acts upon this implied declaration and representation and affords the necessary license, such action resulting in his injury, the persons who have thus obtained permission to enter are estopped on tl>e plainest principles of equity from denying their purpose to excavate below the stated depth. They had no business upon his premises unless they intended so to excavate. Having obtained access thereto by reason of their implied avowal to that effect, and having negligently injured him by failing properly to do the work which they undertook to do, they should not be permitted to escape liability for their negligence by now saying that they never intended to dig more than five feet below the curb.

I think that this judgment is right and should be affirmed.

All concurred, except Woodward, J., who read for reversal.