Ketcham v. . Newman

*209 Andrews, Ch. J. , The entry by the contractors upon the premises without the license and against the protest of the plaintiffs was a trespass, and rendered them hable for the damages sustained by the plaintiffs to their possession and to the merchandise in the store resulting from the unlawful entry. The liability would extend also to any person who advised or directed the unlawful acts. It was upon this principle that the court charged the jury that the defendants were liable if the entry was without the license of the plaintiffs. The court regarded the contract made by the defendants with the contractors as in law a direction by them to the contractors to commit the trespass complained of. If this view is well founded there was no error in the charge. But we are of the opinion that the construction placed upon the contract by the trial judge is not warranted. The Goodwins were independent contractors. This was so ruled by the court on the trial and was conceded on the argument here. This fact is only important to exclude any liability founded on the ordinary relation of master and servant. Where this relation exists the master may be liable for the wrongful act of the servant, although committed without his authority and even in violation of his instructions, provided it was committed in the business of the master and within the scope of the servant’s employment. (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23.) But where a trespass has been committed upon the rights or property of another, by' the advice or direction of a defendant, it is wholly unimportant what contractual or other relation existed between the immediate agent of the wrong and the person sought to he charged. The latter cannot shelter himself under the plea that the immediate wrongdoer did the act in execution of a contract, or that he came within the definition of an independent contractor as to the performance of the work in the execution of which the tortious act was committed. If he advised or directed the act his liability is established. The contract entered into between the defendants and the *210 contractors did not, as we construe it, authorize the contractors to commit a trespass upon the premises of the plaintiffs. In construing the contract it is important to consider the situation. The defendants were about to tear down the old building on their premises, and erect a new one according to plans which required an excavation of their lot to the depth of 22 feet. They had a lawful right to make the excavation. The excavation would probably endanger the adjacent wall of the building of the plaintiffs. Ho common-law duty was imposed upon the defendants to shore up or protect the wall from injury. The building of the plaintiffs had no easement of support by the land of the defendants. The rule of the common law placed the burden of protecting the wall from injury from the excavation upon the owners of the wall. The defendants were bound only to the exercise of reasonable care in making the excavation, doing no unnecessary damage. (Dorrity v. Rapp, 72 N. Y. 308 and cases cited.) Under the common law they had no right to enter upon the premises of the plaintiffs to shore up the wall, nor would they have been under any duty to do so, even if they were permitted by the owners of adjacent premises. The legislature, recognizing the hardships imposed upon owners of improved property by the rule of common law, intervened by the act, chap. 6 of the Laws of 1855, as to the cities of Hew York and Brooklyn. By that act the .duty was imposed' upon lot-owners proposing to excavate their lots to the depth of more than ten feet below the curb, to protect at their own expense a wall on or near the boundary line of adjacent premises from injury from such excavation, “ if afforded the necessary license to enter on the adjoining land, and not otherwise.” The contract between the defendants and the contractoi’S was made under this condition of the law. The defendants contemplated an excavation on their lot more than ten feet in depth. The law of 1885 cast upon them the duty to protect the wall on the lot of the plaintiffs, “ if afforded the necessary license to enter ” for that purpose. The defendants made the contract, as is to be inferred, without having obtained the permission of the *211 plaintiffs to enter upon their premises, but upon the assumption that the permission would be given. The contractors bound themselves to do the shoring “ as required by law.” They were not authorized by the contract to enter the adjacent premises without permission of the owners and occupants. It was necessarily implied that they were employed to discharge the obligation imposed upon the defendants by the act of 1855, and it was a prerequisite that the consent of the owners or occupants should be obtained before entry could be lawfully made. The defendants neither in terms authorized an entry by the contractors as trespassers, nor can such intention be presumed. On the contrary, the contractors were to act “ as required by law.” It would have been a complete answer to a claim by the defendants for a breach of the contract by the contractors, that the latter were unable to obtain the permission of the plaintiffs to enter the premises to do the work required, and that it could not have been done without such entry. If there was any evidence that the defendants advised or directed the trespass, other than that furnished by the contract, it should have been submitted to the jury. There was none to justify a ruling as matter of law that in the absence of a license to enter the defendants were liable. We think the trial judge erred, and that the judgment below should be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed.