Post v. Kerwin

Rich, J.: There is sufficient evidence in the case, if believed, to sustain a finding against the defendant under the provisions of section 22 of Building Code of the city of New York. This code has the same force and effect as a statute. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 407, as amd. by Laws of 1904, chaps. 602, 628; City of New York v. Trustees, 85 App, Div. 355; affd., 180 N. Y. 527.) The defendant, who was engaged in the construction of a building upon premises adjoining those of plaintiff, testified that the depth of his excavation was twenty feet below-the curb at the front of his building and eleven feet at the rear, and that in constructing his new building he used the party wall, on the top of which he.constructed a new wall to a height in all of one hundred and thirty-six feet. The plaintiff’s house had four stories and a basement. The building constructed by the defendant was an eleven-story office and loft building. There was an issue as to the condition of the party wall at the time the defendant commenced [406] work, but the .evidence of the plaintiff and his witnesses, if believed by the jury, was sufficient to sustain a finding that it was in good condition and sufficient for the use of the plaintiff’s building, upon which defendant’s liability might have been based, irrespective of the degree of care used in the work. (Dorrity v. Rapp, 72 N. Y. 307; Bernheimer v. Kilpatrick, 53 Hun, 316; affd., 127 N. Y. 672; Cohen v. Simmons, 50 N. Y. St. Repr. 146; affd., 142 N. Y. 671.) The learned trial court charged the jury: “ This action is for negligence. Plaintiff, therefore, must establish the facts entitling him to recover by a fair preponderance of proof and from, the evidence. He must show that the defendant was negligent and he must be free from contributory negligence. Failing in either, he cannot recover.” He then directed the attention of the jury to the provisions of the Building Code and correctly instructed them as to the duties and liability of the defendant thereunder. He concluded his charge with' the following language: “ This case, as I said at the outset, is one of negligence; if you find for the plaintiff it must be because he. has satisfied you by a fair preponderance of proof of the negligence of this defendant and his own freedom from contributory negligence.” I think the effect 'of this charge was to instruct the jury that although they found from the evidence facts which might establish the liability of the defendant, because of his having Carried the excavation for his building to a depth of more than ten feet below the curb, and had used the party wall, which was in good condition and sufficient for the use of plaintiff’s building, nevertheless the plaintiff could not recover unless they found in addition that the defendant was negligent in making such excavation and in the user he made of the party wall. These instructions were erroneous and prejudicial, because the plaintiff had established a casé, if his evidence was to be believed, clearly within the provisions of a statute which imposed duties and liabilities absolute, unqualified, and in no manner dependent upon the degree of care exercised by the defendant in the conduct of his building operations. ' Such statutory liability cannot be avoided by showing that in the work the defendant exercised due care and was free from negligence. While it is true, as contended, that the court charged in form that the liability under the Building Code was absolute, it specifically instructed the jury, at the commencement [407] and conclusion of its charge, that the action was for negligence and that the plaintiff could not recover unless he had satisfied them by a fair preponderance of the evidence that the defendant was negligent. The charge of the learned trial justice was perfectly clear and the jury must have understood that notwithstanding anything he had said regarding such liability, they could not render a verdict for the plaintiff unless they found the defendant negligent in his performance of the work and user of the party wall. The basis of defendant’s liability was thus made the existence of negligence, and excluded all other grounds of liability. In view of the emphasis these instructions placed upon the necessity of defendant’s negligence being established, as a condition precedent to plaintiff’s recovery, I think it is reasonably certain that the plaintiff was prejudiced, and that the error of the learned trial justice is so substantial as to call for a reversal. The judgment and order must be reversed and a new trial granted, costs to abide the event. Bubr, J., concurred ; Oraynor, J., concurred in separate opinion; • Hirschberg, P. J., and Miller, J., dissented.