Burke v. Ireland

Hatch, J.:

In the discussion of the particular ground upon which, in our view of the .case, this judgment may rest, it is not necessary to review the facts further than to state so much as is essential for the assignment of reasons upon which our judgment rests. There has never been any dispute as to the cause.of the collapse of the building in question. Two causes concurred: First, the inherently defective -and insufficient foundation of earth upon which the concrete was-placed for the support of the superstructure; and, second, the insufficient depth of the concrete which was laid upon the earth. Upon the trial the court submitted to the jury two questions, upon which it charged that, if the defendant Ireland was responsible for the conditions involved therein, a recovery might be had. These questions were, was the plan of the building inherently defective, and was the •defendant Ireland responsible for the failure to place the column which fell upon a secure foundation ? When this case was before the court upon a former appeal the-rule was laid down governing the liability of the defendant Ireland, in respect of these questions in the following language:

“ The evidence on the trial tends to' establish that one of the most probable causes of the collapse of the building was the defective character of the foundation under the pillar, where the concrete was laid partly over earth and partly over the old cistern wall. , Such,, too, is the claim of the counsel for both parties. The question of who was responsible for the defective character of that foundation, is not free from doubt. Parker’s contract did not include the excavation. Under the specifications, a uniform thickness of eighteen inches of concrete for the piers is prescribed. No provision whatever is made, either in the contract or in the specifications, for. the contingency that excavation to the depth of two feet might not find soil on which it was safe to rest the foundation of the piers which were to carry the walls or columns.' It might have eventuated, as probably was the actual case, that it was necessary to excavate below the bottom of the cistern wall before it would be safe to commence the laying of the concrete foundation; or it might even have hapjiened that quicksand would be found, and it would be necessary to drive piles or. adopt some other special means to provide a secure place on which to. lay the concrete. Under the contract no duty was devolved upon Parker in these respects except one, i. e:, that no concrete should be laid in trenches until they had been examined by. the architect. The duty, therefore, pf providing a proper foundation upon which the concrete was to be laid, and’of passing upon and determining the sufficiency of that foundation, rested on the owner or his agent. If there was negligence: in this respect by the owner or agent, it would not absolve' the former from liability,, even though the contractor was also careless. The evidence tends to show that the trench was laid out by the foreman of Parker, the contractor, and that the excavation was made and the concrete laid in the absence of the architect. * * * On this state of facts; and assuming that the foundation was Improper, the negligence of the contractor’s foreman is plain, for the specifications provided that he should not lay concrete until the trenches had been inspected by the architect. But it does not necessarily follow that the architect or superintendent of construction was not also to blame. There is evidence tending to show that he absented himself from the building during the time the foundations were being excavated, and also that he accepted and passed the concrete work without having examined the bed on which it was laid. It may be that the fact that the concrete had already been laid before his attention was called to the trench, might be a sufficient excuse for his conduct, and that even a careful man might have been deceived as to the character of the foundation. This, however, was a question of fact for the jury. Therefore we cannot say, as a matter of law, that the appellant was in nowise responsible for an accident occasioned by the improper character of the soil on which the concrete was placed.” (26 App. Div. 487, 494.)

The evidence in the present record, so far as it relates to the defective plans, is not essentially different from that which appeared upon the former appeal. Thereunder, the jury were authorized to find that the plans were in fact defective and in violation of the Building Law. This conclusion is supported by the evidence, which tended to show that eighteen inches of concrete was not a sufficient support, even though it were laid upon undisturbed earth; that the area of the concrete was too great for its thickness; and that the weight of the building which the foundation was necessarily required to bear would, in time, cause a collapse of the structure. It does not need argument. to establish that a plan for the foundation of a building which is insufficient to support it if erected in precise conformity thereto, is a defective plan. Such fact is a demonstration that it is faulty. That this plan was imperfect and insufficient we determined was sufficiently established, upon the former appeal, to support a verdict which so said; and as the evidence upon the subject is as strong if not stronger than before, we must conclude that the verdict in this respect has evidence upon which it may rest.

The defendant seeks to avoid this result by several considerations. It is said that the building department and Parker, the contractor, approved of the plans. The approval by the former is not conclusive; it is a circumstance merely which may be considered to show that they were perfect. (Pitcher v. Lennon, 12 App. Div. 356.) Such approval could in no view release a party from the consequences of providing a plan and erecting a building in conformity thereto which violated the building laws of the State. The approval by Parker could not aid to perfect the plans if they were in fact defective, as no agreement with the contractor can shield the person from the obligation which he is required to perform; otherwise the contractor’s approval might operate as a shield to the owner’s neglect. Such approval may or may not be a circumstance entitled to consideration' in exoneration, but in any event it can have, no greater weight than the approval by the building department.

It is further said that the defendant committed the whole matter of plans and construction to a competent architect, and is to be exonerated for that réason. Upon the former appeal in the Savage case, we said: “ Where an owner employs a competent and skillful architect to design the building, he is not responsible to the employees of contractors who agree to construct the building according to such design for faults or defects in the design of which he neither knew nor should have known. Of course, to relieve the owner from liability, it must appear that he fairly committed the subject-matter to the architect, and that the deficiencies or defects of the design did not proceed from his interference or direction.”

In a recent case, the Appellate Division in the first department, upon a record similar to the one we áre now considering, held the the same rule. (Fox v. Ireland, 46 App. Div. 541.) Adopting this as the law, we do not find in -this record proof conclusive that the defendant committed this matter entirely to-an architect. The defendant Ireland was not sworn as a witness upon the present trial, neither was his architect. While there is proof in the record from which it might be found that the architect was competent, yet there is no conclusive proof that Ireland knew him to be competent when he employed him, or that he'made any inquiry as to his competency, or that he committed the subject-matter of the plans and of the construction entirely to the architect. On the contrary,* the testimony of Ireland, given upon a former trial and read upon this trial as an admission, shows that, in the construction of the building, he reserved to himself the right to^make changes in the construction; that he added a story to the building and directed Barker in and about matters connected therewith. The most that can be said of all that appears is, that the defendant employed a competent architect, who made plans, saw them carried out and superintended the construction of .the building. But nowhere does it conclusively appear that he committed the whole subject-matter of the plans and building to the architect. Upon this subject the court charged that if the defendant really and actually committed the decision of the .question of plans to the architect, he might be exonerated. Assuming that the evidence ¡presented this view of the question, the jury were authorized to find that the defendant did not so commit the question, but that he limited the authority of .the architect and reserved to himself the right to give directions concerning the construction. It is claimed that the undisputed statement of the defendant is, that he did commit the whole matter to the architect, and that the court was not authorized to submit such question upon'the evidence. Ireland was not sworn upon this trial, but his testimony was read, a part of it by the plaintiff and the remainder by the defendant. This testimony was available to the plaintiff as constituting an admission of fact, in extent as broad as made. When it was so read the defendant became entitled to read- all that other part of the testimony which tended to qualify or explain the portion relied upon as constituting an admission. (Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274.) There was no right, however, to read testimony which did not accomplish this result, and so far as the testimony read did not qualify or explain, it was no more admissible than would be any other declaration of the defendant, whether the same was in the form of testimony or otherwise. It is no higher grade of testimony than declarations in favor of a party which are not admissible to establish a fact under the circumstances of this case. It is quite doubtful if any evidence of the defendant which was read in his favor qualified or explained the admissions made by him respecting the architect’s relation to the building, or established that the subject-matter was committed to the architect. Assuming, however, that it did qualify or explain, or tendéd to establish the fact, the court was not authorized, to direct the jury that it was conclusive upon the question. It was the province of the jury to attach such weight to the statement as they saw fit. ' As Ireland was an inter-. ested party ^ they could accept his statements either in whole or in part, or reject entirely. (Volkmar v. Manhattan R. Co., 134 N. Y. 418; Joy v. Diefendorf, 130 id. 6; Becker v. Koch, 104 id. 394.) Upon this branch of the case, therefore, we think the question was properly submitted to the jury.

As to the second ground, it is perfectly evident that any plan of construction which did not involve a safe and secure support for the building which was to be erected, must be in its very nature inherently defective. There was testimony in the case that the depth of thirty-three inches in which the concrete was to be laid was insufficient, even though placed upon undisturbed earth, for the support of the superstructure, and that in the character of the soil where this building was to be erected such provision was entirely insufficient as-a foundation for the proposed building. We think it must be con- . ceded that the owner of soil known to be composed of quicksand, or which for any other reason would constitute an- insecure foundation, could not make a plan of a building to be erected upon such, soil with no other provision for support than would be essential for. such purpose if it were erected upon solid earth which was without infirmity of any character. The owner of ground which is infirm must, we think, in making plans of construction, take the fact of such infirmity into consideration; and if it be unknown, but is developed in the course of the construction, he may not proceed with his work to the peril of others, making no provision against the-infirm character of the soil on which he is building, and then shelter himself from liability by the claim that his plans were not defective as applied to a construction upon solid ground.. In the present case, if the character of the soil whereon the building was to be erected required eight and a half feet of excavation for the -columns to rest upon instead of thirty-three inches, for the support of the building, then a plan of construction which calls for the latter instead of the former, is inherently defective. Upon the evidence in this case the jury were authorized to find that such condition existed.

We said in our former decision that Parker’s contrá’ct did not require anything further than not to lay the concrete in the trenches until they had been inspected by the architect. Garry’s contract made no provision with respect -to the depth of any excavation required to procure a good bottom, if further excavation was necessary beyond that for which the plans called. From these considerations the .court reached the conclusion that the duty of determining thej depth to . which the excavation should extend devolved upon the defendant Ireland or his' agents. In submitting this question to the jury, the coiirt left it to them to determine whether Ireland knew or ought to have known of these conditions. His agent in this regard was .the architect Behrens. . Behrens not only prepared the plans, but he superintended the construction. When a point was reached where . it became necessary to determine what should be the proper depth of the excavation for a secure foundation, such question must be held to have been work within the owner’s control, for the performance of which, by the agent selected by him, he was responsible. (Voegel v. The Mayor, 92 N. Y. 10.) The primary duty resting upon the defendant Ireland was to secure a suré foundation for his building, and he ought to have known — at least he is chargeable with the knowledge essential for him to perform the duty properly. As he did not contract with any contractor for a specific depth to which the foundation should be carried, and as the architect had no power or authority to change or modify his plans, the duty of determining what should be done on account of the infirmity of the soil was one which devolved directly upon the defendant Ireland, and the architect in this respect occupied the relation to Ireland of an ordinary agent. For his failure to properly perform his duty in that regard, the defendant Ireland is chargeable.

Nor does it answer to sajr that the contractor Parker was also guilty of negligence in laying the concrete insufficient in thickness, or in permitting it to rest upon the old" cistern wall or upon the undisturbed earth. It is clearly evident that the cause of the collapse was the resting of the concrete upon an insecure foundation, as well as the insufficiency of the concrete itself. Parker was not charged by his contract with making any depth of excavation whatever, nor does it appear that Garry, by his .contract, was charged with such obligation. The testimony is that the soil in which- the excavation was made was fine, micaceous sand, approaching quicksand ; and the jury would have the right to find that the character of the soil was dangerous, as well as was the presence of the cistern wall. This condition produced a contingency not contemplated by the contract, and not embraced within the clause providing that the foundations were to be laid upon undisturbed earth. That clause of the contract forbids the laying of the concrete upon disturbed earth ; it did not, howev.er, absolve the defendant from- the obligation to secure a safe foundation. This obligation was primary; and as the defendant made no provision for performing it beyond that for which the plans called, and as the architect was to inspect the trench before the concrete was laid, if, then, the earth was disturbed by reason of a contingency not contemplated by the plans, the duty rested upon .the owner to provide therefor, and the architect charged with the examination must be regarded as his agent for that purpose. No contractor was chargeable with the obligation to go to the bottom of the cistern, or beyond it,, if that was required. The person chargeable with this duty was the defendant Ireland,, and he cannot shelter himself behind the architect in its proper performance'. The jury were also authorized to find that, after the concrete was laid, the bricks of the cistern wall Were visible upon inspection. As upon this matter Ireland was chargeable, what could be observed ought to have been observed, and his obligation to correct the same was immediately emergent.

. Substantially all of the questions raised as errors in ruling upon .■the trial and in the charge are covered by the discussion already had. We are not able to see that any substantial error was committed upon the trial, and conclude that the judgment should be affirmed. ,• -

All concurred, except Goodbioh, P. J., who read for reversal, ánd Hieschbebg, J., taking no part.