Rossitti v. Valente

HENDRICK, J.

Defendant’s testator pulled down her building, and in so doing disturbed the party wall of an adjoining building, in which plaintiff was a tenant. The changes made by the testator are alleged to have been done in a negligent manner. That issue was fairly and clearly submitted to the jury, and we do not feel authorized to disturb its finding.

We are also of the opinion that the evidence sustains the finding of the jury that plaintiff suffered substantial damages; but in proving the amount of damages plaintiff was-allowed to introduce in evidence some letters between himself and his customers to prove the extent of his damage. In one of the letters, printed in English, the customer writes that he had telephoned plaintiff to rush his order, and that he was entirely out of paper. This evidence was material to the controverted question as to whether plaintiff lost business on account of disturbance of the party wall, and we cannot'say that it did not exert an influence on the jury prejudicial to defendant. We recall no rule of law which permits plaintiff to introduce letters of a third party in evidence against a defendant who had no knowledge of them.

Plaintiff also introduced in evidence facts tending to prove loss of profits on specific contracts with his customers. Such evidence introduces issues foreign to those presented by the pleadings. When a plaintiff’s business has been temporarily broken up by the negligence of a defendant, he may prove his general damage, and may take into consideration the fact that his business is profitable; but he cannot ask a jury to determine how much he might make on specific contracts.

Nor do we think it was competent for plaintiff to prove the difference between the rent paid in his new place of business and the rent he would have paid, had he remained in the building which defendant is alleged to have rendered untenantable. Compensatory damages is the rule, and the difference between the value of the leasehold as it was and the value after injury to the party wall would afford the more natural and usual measure of damages.

We have not overlooked defendant’s argument that an owner may pull down his own building and excavate his lot with impunity, although the adjoining buildings fall into the excavation. Plaintiff says:

“They dug down below the wall tha,t was holding up the building that I was in. Under the party wall, they dug right under. And they did not put up any braces or shoring or anything.”

Granting that an owner may dig vertically on his own lot lower than the foundation of an adjoining house, regardless of consequences, he is not permitted to dig under that adjoining wall, even if it be a party wall resting* in part upon his own premises. We are not now considering whether the maxim, “Sic utere tuo ut alienum non kedas,” has any application here, as we deem it sufficient to hold that a party wall is not the exclusive property of either owner.

The verdict is well within the evidence, and perhaps the errors herein noticed worked no prejudice to defendant; but such errors cannot be disposed of on probabilities.

The judgment and order must be reversed, and a new'trial granted, with costs to appellant to abide the event.

DELANY, J., concurs. LEHMAN, J., concurs in result.