[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 85 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 87 As appears by the foregoing statement of facts, the appellants are seeking to recover damages, because while they were the tenants in a building owned by the respondent, the latter caused the adjoining one also owned by him to be removed and an excavation to be made in such a manner that the former building collapsed and the tenants' property was injured.
They were nonsuited, and it seems desirable in the first instance to correct various erroneous ideas which have accumulated in the minds of counsel on both sides as the result of the practice which was followed by the trial court in reserving its decision on a motion for a nonsuit pending a general verdict and then disregarding the motion for a new trial and granting the nonsuit. The counsel for the appellants insists that the reserved motion for a nonsuit having been granted after the jury had rendered a verdict in favor of his clients, we should reinstate the verdict and order judgment thereon if we should think that the motion for a nonsuit ought not to have been granted. Of course this would not be permissible even if justified by the evidence under the court's charge. Counsel for respondent having made a motion for a new trial under section 999 of the Code after the verdict was rendered and this motion having been disregarded, and, instead, the original motion for a nonsuit having been granted, the respondent would be deprived of his rights under the motion for a new trial if we should now reverse the nonsuit and direct judgment on the verdict. (True v.Lehigh V.R.R. Co., 22 App. Div. 588.)
On the other side, the respondent contends that because the appellants took no exceptions to the theory on which the trial judge did tentatively submit the case to the jury they are bound on this appeal by that theory with all of its restrictions and cannot urge any other one upon which they should have been allowed to go to the jury. This view also is manifestly *Page 89 incorrect. If the judgment appealed from were entered on the verdict the respondent's argument would be well founded, but it is not. The verdict has been eliminated and the judgment entered on the direction for a nonsuit, and the ordinary question is presented to us which arises on any nonsuit whether there was any view of the case on which the appellants should have been allowed to go to the jury, and this brings us to the merits of the appeal. The appellants were not required to make specific requests to go to the jury. (Rochester K.F. Land Co. v.Raymond, 158 N.Y. 576, 584; First Nat. Bank of Springfield v.Dana, 79 N.Y. 108; Trustees, etc., of East Hampton v. Kirk,68 N.Y. 459.)
This is an appeal resulting from a second trial. On the first trial the appellants hung their hopes of recovery on alleged violations of section 22 of the Building Code, which provides for the protection of property from the effects of adjacent excavation, primarily imposing this duty on the person making the excavation or on the one owning the adjacent property accordingly as the excavation is to be more than ten feet in depth or not, and further enacting that if the necessary license is not granted to the one making the excavation and primarily required to take protective measures to go on the adjoining premises for this purpose, then the owner of the adjoining premises refusing to grant such license shall protect the walls and buildings. The determination of the Appellate Division on the first appeal, however, dissipated these hopes of the appellants by holding that those provisions did not apply to a case like the present one where the same man owned both properties, and it seems apparent to me that for the reasons fully set forth in the opinion of Judge PATTERSON (122 App. Div. 512), and which I shall not take the space to recapitulate, those provisions are not adapted to the regulation of such a situation as arose in this case where the respondent owned both the property on which the excavation was being made and also the adjacent building in part occupied by the appellants.
Thus driven from their original position the appellants *Page 90 claim to have adopted and maintained, so that the court was under obligations to submit it to the jury on the present trial, the other theory that respondent independent of the provisions of the Building Code violated the obligations which as landlord he owed to his tenants, and thereby caused them injury, and that, in my judgment, is the contention on which they must rely. The disposition of this claim involves the solution of the questions,first, whether there was any such violation, and, second, whether the appellants under their pleadings are in a position to avail themselves of it if it existed.
Unquestionably the respondent owed the duty not to disturb the appellants in their possession and enjoyment of the premises which he had leased to them by any such operations as he undertook on the adjoining lot, and for his violation of this obligation he might have heen held liable independent of any negligence. (Snow v. Pulitzer, 142 N.Y. 263.)
The complaint, however, does not fairly comprehend any theory of recovery so broad as this. At most, and that question will be further considered, it sets forth a cause of action in negligence. It seems to me, however, that thereby the appellants have simply restricted and minimized the liability of respondent without destroying it and that a cause of action in negligence for the consideration of the jury was established by the evidence. Assuming as I do that the respondent under the complaint was not under obligations to so conduct his removal of the building and his excavation that practically under no circumstances the appellants should be disturbed in their occupation as tenants, he at least was under the obligation to protect his tenants from any unnecessary disturbance and eviction and for that purpose to see to it that the operations on the adjacent lot were conducted with all reasonable care and prudence. Plaintiffs' complaint, as I shall assume for the present, goes no further than to relieve him from liability in trespass for an interference which could not be foreseen and was not negligent, and charges him still with the duty to exercise care and caution to avoid accidents and disturbance *Page 91 to his tenants. (Judd Co. v. Cushing, 50 Hun, 181; Butler v. Cushing, 46 Hun, 521.)
Ordinarily the respondent might reply, as he does attempt to, that he discharged his obligations by securing a competent independent contractor and that thereby he has been relieved from responsibility for any negligence except of himself which is not shown to have existed. That defense, however, is not available in this case. The respondent's duty to protect his tenants from disturbance in the course of his building operations was of a personal character and he could not discharge it by delegating those operations even to a competent independent contractor. (Blumenthal v. Prescott, 70 App. Div. 560, 565; Sciolaro v.Asch, 198 N.Y. 77.)
And very likely a second exception to the general rule militates against him, and that is the one that where the work itself in the course of which damages are caused creates the danger or injury, the ultimate superior or proprietor is liable to persons injured by a failure to properly guard or protect the work even though the work is intrusted to an independent contractor. (Downey v. Low, 22 App. Div. 460.)
It is scarcely claimed and cannot be successfully maintained that there was not evidence which would have permitted a jury to say that the work which resulted in the collapse of the building wherein appellants had their loft was not negligently conducted. Amongst other things it appeared that the building which collapsed was of brick, four stories high, and nearly one hundred feet deep. The adjacent excavation was estimated to be from eight to fifteen feet deep, extending below the foundations, and at the time of the accident this wall was not shored up or supported in any manner.
The remaining question, as already stated, relates to the sufficiency of the complaint, and I think should be decided in favor of the appellants. It sets forth the relation of landlord and tenant, and then with sufficient completeness details the operations and acts which led up to the collapse of the building. While, as before stated, its allegations may have looked primarily to the provisions of the Building Code as a basis for *Page 92 recovery, they are not limited to those provisions, but are broad enough to permit a recovery on the other theory discussed, and it is significant that both in the opinion of the Appellate Division on the prior appeal and on the present trial reference was made to a recovery on some such theory without any very exact definition of just how it should be presented to the jury. It seems to me, therefore, that although the appellants have shifted their ground somewhat in order to secure a more effective position than they took on the first trial, they have not stepped outside the lines of their complaint and are not subject to defeat on that ground. Neither did anything occur on the last trial which estops them from adopting their present attitude.
The fact that the appellants applied for an amendment of their complaint so as more broadly to include their present views, and then failed to accept it under the terms imposed by the court, even assuming that the facts disclosing this are before us, does not estop them from taking their present position, and the case in its controlling features is entirely unlike those ofWeichsel v. Spear (15 J. S. 223) and Driscoll v. Downer (55 Hun, 531), cited by respondent.
For all these reasons I think the judgment must be reversed and a new trial granted, costs to abide event.
VANN and WERNER, JJ., concur; CULLEN, Ch. J., WILLARD BARTLETT and CHASE, JJ., concur in result and in the opinion, except that they think that the provisions of the Building Code inure to the benefit of any one holding an estate in the premises.
Judgment reversed, etc. *Page 93