Kappes v. Appel

McAllister, P. J. It is indisputable that the defendants’ evidence tended to show that they in good faith, and for sufficient reasons, disputed the justice of the plaintiff’s clairii to the five hundred dollars, the balance of the contract price, on the ground of defective work aud materials done and furnished by the plaintiff, in constructing the mason work of defendants’ building; that, as a sort of compromise, the plaintiff, at the time of the giving the note in suit, entered into an undertaking of guaranty and warranty that the building was all right, which was to continue during the time the note was to run, and that the defendants gave the note upon that condition. There being evidence of that tendency, the defendants had the clear right to try their case upon that theory, and to endeavor to recoup from the amount of the note all such damages as they could legitimately show to have been the direct and natural result of a breach of said guaranty and warranty. The building was in the city; the defendants, being the owners, were in the possession and use of it for a furniture factory. They owed, therefore, substantially the same duties to the proprietor of an adjoining building as they would to persons in the lawful use of the street on which it abutted. Add. on Torts, 169, 178. “ An owner of land has the same duty to keep on his own land a house or wall built thereon, as the filth in his cess-pool, or the water in his reservoir, or the snow upon his roof.” His duty is, in the words of Baron Parke, to keep it in such a state that his neighbor may not be injured by its fall.” Gorham v. Gross, 125 Mass. 232. The evidence for defendant clearly tended to "show that the defendants, by the falling of the wall of their building, without inevitable accident, over upon the roof of the adjoining cottage, were legally liable to the proprietor of that cottage for the damages thereby occasioned. Mullen v. St. John, 57 N. Y. 567. That being the case, it seems to us that the'plaintiff was liable over to the defendants, upon his guaranty and warranty, for what the defendants were so liable to pay to said proprietor, or what they, in good faith, had paid to him, in respect of such damages, provided they were such as the defendants were obliged or authorized to pay under the circumstances. The court below excluded all inquiry into such damages, and in this we think there was error. The undertaking on the part of the plaintiff, which the defendants’ evidence tended to prove, was, in legal effect, one of indemnity, and covered the loss which the defendants incurred by their wall falling onto this cottage by reason of the defect in its structure, which the evidence tended to show. Other exceptions were taken on the trial, which have been urged for reversal, but which we shall not stop to consider, since the error pointed out is clear, and was prejudicial to the appellants. The judgment of the court below will be reversed and the cause remanded. Beversed and remanded.