JENCKS v. KENNY

JENCKS v. KENNY. N. Y. Superior Court; Special Term; April, 1892. Excavations. Protecting adjoining property. The duty imposed orr owners excavating to protect adjoining property from injury is not applicable to excavations made in the street, under the direction of the municipal authorities Motion for injunction enjoining defendant from excavating in front of the plaintiff’s property, unless the defendant shores up and protects the foundation walls. The plaintiff owns two lots on 106th street, 175 feet westerly from Eighth avenue, in the city of New York, on which there are two five-story brick and stone double tenements-The defendant entered into a contract with the municipal authorities to construct a sewer in 106th- street, underneath the sidewalk in front of the plaintiff’s property, to a depth of more than ten feet, and in excavating refused to shore up or protect the plaintiff’s property, and unless so protected the plaintiff feared that his buildings would slide into the excavation. E. Hall, for motion. Kellogg, Rose & Smith, opposed. See foot-note at end of this case as to duty of adjoining owner. [MAJORITY — McAdam, J.] McAdam, J. The defendant, under a contract with, the city, is excavating a sewer in front of plaintiff’s property. The power exercised is vested in the municipal, authorities by express statute (Consol. Act, 1882, § 878). The act of 1855, ch. 6, respecting excavations, re-enacted in 1882 (Consol. Act, 474, amended in 1885,. ch.456; 1887, ch. 566) applies to “adjoining owners” only, concerns private rights and obligations—not public functions—and affords the plaintiff no remedy for the acts complained of. Motion to continue injunction denied. Note.—Duty of excavating owner to protect neighbor's house. Under the Act of 1855, ch. 6, an owner of property in the cities of New York or Brooklyn excavating below ten feet, was bound tO' protect his neighbor’s wall, provided it extended downward to the depth of ten feet. At common law no such obligation existed. ( See cases collated in McAdams’ L. & T., 2d ed. 516). The Act of 1855, supra, was re-enacted and made § 878 of the N. Y. Consolidation Act of 1882 and was amended in 1887 (§ 3, ch. 566,) by requiring an owner excavating below ten feet to protect his neighbor’s wall, “ whether said adjoining wall is down more or less than ten feet below the curb." This change is deemed of sufficient, importance to be noted in connection with the decision reported.