Schile v. . Brokhahus

*618 Churci-i, Ch. J. This case is somewhat confused both as to the principles applicable to it, and the facts developed on the trial. The right of the defendant to replace the old party-wall with another suitable for the new building which he was about to erect seems not to have been considered or determined. The case was tried upon the theory that the defendant in disregard of the rights of the plaintiff and his lessor, commenced to tear down the old Wall, claiming that it stood entirely upon his own land, and intending to erect a now wall for himself, without giving the plaintiff’s property any benefit from it as a party-wall, and that this was a trespass which caused the injury complained of. The jury have found in favor of this theory, and while the evidence is quite conflicting, it cannot be said that the case is so destitute of evidence to sustain it as to render the verdict invalid, or make it error to submit the question to the jury. The defendant upon protest, and threat of legal proceedings, changed his intention, and finally built a wall inside the old wall upon his own land. The defendant clearly had a right to tear down his own building, and rebuild it, and if he did that in a careful manner doing no unnecessary damage, he would not be liable. . The jury have found that the injury was in pursuance of the unlawful project of appropriating the old wall, and the land on which it stood, to his own use, and that such injury would not have occurred in simply taking down his own building. The old wall from long user, in the absence of evidence, must be deemed a party-wall presumptively, either from an agreement to that effect, or from its being built upon the line of the two lots for that purpose by the respective owners. (Brown v. Otto, 40 Md., 15.) If a party-wall has become so dilapidated as to be unsafe the owner of one building has a right to replace it, and in so doing is not liable for .damages. (Partridge v. Gilbert, 15 N. Y., 601.) There are other cases, where, if a party-wall is interfered with for the benefit of one owner, as by raising it, such owner is abso, lutely liable as insurer for any loss or damage occasioned to *619 the neighbor thereby. (Brooks v. Curtis, 50 N. Y., 639.) But the questions presented do not require a determination of the precise right of the defendant to interfere with the wall in question. Assuming as we do that the verdict of the jury was sustained by the evidence, the acts of the defendant must be regarded as wrongful, and the question what he might lawfully have done, is not material. There was evidence tending to show that the old wall was sufficient for the buildings as they stood, but the buildings were old, and if either was permanently rebuilt, a new and stronger wall would be necessary. There was no error in submitting to the jury the question whether the tearing down of that portion of the wall of which complaint is made, was in pursuance of the contract and authority of the defendant. If that work was included in the contract within the contemplation of the parties, the defendant is responsible for it. (Gardner v. Heartt, 2 Barb., 165; Storrs v. Utica, 17 N. Y., 108; Brown v. Otto, supra.) ¡Nor was it error upon the theory upon which the case was tried, to preclude the question of contributory negligence as a defense. The action is not based upon negligence, but upon a tort, or trespass. (Muller v. McKesson, 73 N. Y., 195-204.) There are several exceptions to the admission or rejection of evidence, which are not tenable, nor were the exceptions to the charge well taken. The most serious question presented is that arising upon the exception to the refusal to charge “ that there is no proof of loss of profits.” It cannot be affirmed that there was no evidence on the subject. It was shown how much less the business was during the months when the injury occurred than during the corresponding months of the preceding year, and the profit s upon the business ; that the goods manufactured and kept for sale were badly injured, that the rooms for doing business were reduced in size in consequence of plaintiffs being obliged to erect a partition to close the opening made, that wind and storms rendered it unpleasant and inconvenient, and that the working .of the press for printing was suspended for a considerable *620 period; and that the time of the plaintiff was to some extent necessarily diverted from, his business by the acts of the defendant. Loss of profits consequent upon a tort as well as a breach of contract are allowed, provided they are such as might naturally be expected to follow from the wrongful act, and are certain both in their nature and in respect to the cause from which they proceed. (Griffin v. Colver, 16 N. Y., 489; Marquart v. La Large, 5 Duer, 565.) The evidence to say the least was rather weak and inconclusive, but the question as to the sufficiency of the evidence was not very distinctly made. When the evidence of the amount of business and profits during the corresponding months of the previous year was offered, the objection made was that it was incompetent for the purpose of proving loss of profits. This objection was not tenable. The fact of the extent of business done previously, was competent to be shown. If a business is entirely broken up, the amount previously done, is ordinarily pertinent upon the question of the amount which might subsequently be done, and the same is true of a partial interruption of business. (Bagley v. Smith, 10 N. Y., 489; Brown v Otto, 40 Md., 15, supra.) Among twenty-one requests to charge was the one before specified, that there was no proof of loss of profits. The attention of the judge was not drawn to the question whether the proof was sufficient to show that the falling off of business was in consequence of the wrongful acts of the defendant, and he might have supposed that the request referred only to the point made on the trial, that the evidence was incompetent. It is a wholesome rule that the attention of the court must be drawn to the precise point intended, otherwise an exception will not avail. Besides there was evidence tending to show damag'e to specific property, to an amount nearly as large as the verdict, so that if anything was allowed by the jury for loss of business, it might have been, and probably was very small. We do not think, therefore, that this point is presented in such a manner as to justify a reversal of the judgment. The record of the signal service department was *621 sufficiently proved. The agent produced the book containing a copy of the record, attested by his signature, and he verified its correctness as a witness. This came up to the requirement of the statute of being “ certified under oath.” (Laws of 1876, chap. 299.) Upon the whole, regarding as we must the questions of fact passed upon by the jury as conclusive, we are unable to find any error in law committed on the trial, calling for a reversal of the judgment, and it must therefore be affirmed. All concur. Judgment affirmed.