I am of opinion that the statute in question was intended to impose a liability for the benefit of a tenant or occupant of a building, as well as in behalf of an adjacent owner. The former statute* which has been superseded by the Building-Code of Hew York was declared to be remedial in its nature and it was liberally construed to impose a liability within the spirit but beyond the letter of the law. (Bernheimer v. Kilpatrick, 53. Hun, 316 ; affd., 127 N. Y. 672.) The Building Code of Hew York is entitled: “A Remedial Ordinance,” and section 2 thereof provides as follows: “ This ordinance is hereby declared to be remedial, and is to be construed -liberally, to . secure the beneficial interests and purposes . thereof.” Although enacted by the municipal legislative body, it was ratified by the Legislature and has the force and effect of a legislative enactment. (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 majority of the court, according to the opinion about to be announced, take the limited view- that the statute is only intended for the benefit of the owner of the fee and that it does not inure to the benefit of a tenant. 'There was some evidence that the excavation ,was more *519than ten feet in depth, but as I view the case that is immaterial. Section 22 of the Building Code clearly enjoins upon a party about to excavate or cause the excavation of lands to the depth of more than ten feet below the curb, the duty of preserving the wall of the building on adjoining land from injury by'supporting the same “ by proper foundations, so that the said wall or walls, structure or structures shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining or contiguous wall or walls, structure or structures are down more or less than ten feet below the curb.” The defendant was not the owner of the .fee 'of either premises, but he had a leasehold interest for a long term of years of both No. 65 and No. 67 East Eighth street. If the excavation had been carried to the depth of more than ten feet below the curb and damages were caused thereby, under this provision of the law the defendant would be liable absolutely for the collapse of the building. (Dorrity v. Rapp, 72 N. Y. 307.) This court is about to decide, however, that the liability would only extend to the owner of the adjacent building which collapsed and not to a tenant or occupant thereof. In Cohen v. Simmons (21 N. Y. Supp. 385; affd., 142 N. Y. 671) an action by a tenant for years for damages was sustained under the former statute. I see no ground for construing the statute as applying to some tenants and not to all, and in the case last cited the court, at General Term, in overruling the objection that the action could be maintained only by the owner of the fee, say : “ We have examined the statute in vain to find any such restriction as to the right to recover. It would appear that anybody who is injured by a violation of the statute has a right to maintain an action for the damages sustained thereby.” The duty is not imposed in terms for the protection of the building only and I see no ground for precluding a recovery for damages to other property. If the excavation had not been made to a depth of more than ten feet'below the curb at the time of the accident then the defendant, as the owner of the building which collapsed, was liable for having failed to secure the wall under the following provisions of section 22 of the Building Code, to wit: “If such excavation shall not be intended to be or shall not be'carried to a depth of more than ten feet below the curb, the owner or owners of such adjoining or contiguous wall or walls, structure or structures shall *520preserve the same from injury and so support the same by proper foundations that it or they shall be and remain practically as safé as before such excavation was commenced, and shall be permitted to enter upon the premises where such excavation is ■ being made for that purpose, when necessary.” The provision last quoted is quite significant as bearing upon the true construction of the statute and I think is a complete answer to the contention that the statute was only intended for the. benefit of the owner of the adjoining building. This provision of the Building Code provides in effect that the owner of the building adjacent to the excavation must protect his own building in such manner that the same shall-remain practically as safe as before in case the excavation is not to be carried over-ten feet. Surely the Legislature would riot deem it necessary to-require the owner to do something for his own protection. It is manifest, therefore, that it was intended to safeguard the rights of others. It may be said that it was intended merely to prevent the building falling upon the premises upon which the excavation was to be made, to the damage or delay of others engaged in the work of construction ; but there is nothing in the language employed to indicate that it was intended to limit the duty to the protection of. those. ■ The duty is imposed in broad, unqualified terms, without any specification of the party or parties for whose' benefit its performance is required. If the duty of the defendant, as owner of the premises upon which the excavation was being made, did not arise until the excavation" reached a depth-of more than ten feet below the curb, then until that time_ his duty as owner of the premises upon, which the building collapse^ existed, and upon either theory lie. is liable. I, therefore, vote for affirmance.
Lambebt, J., concurred.
Judgment and order reversed, new trial orderéd, costs to appellant . to abide event.
See footnote ante p. 516.— [Rep.