(concurring):
It is provided by section 22 of the Building Code of the city of Mew York (1) that when excavation for the purpose of erecting a building shall be made deeper than 10 feet below the curb, the person causing the excavation to be made, i. e., the owner or lessee doing the work, shall, at his own expense, preserve the adjoining wall and structure “ from injury, and'support the same by proper foundations, so that the said ” wall and structure “ shall be and remain practically as safe as before such excavation was commenced” ; and (2) that if there be a party wall which is to be used, “ and such party wall is in good condition and sufficient for the uses of the adjoining building”, such person causing such adjoining excavation shall at his own expense “ preserve such party wall from injury, and support the same by proper foundations, so that said party wall shall be and remain practically as safe as before the excavation was commenced.”
The complainant alleges that the defendant did not do these things, and injured his building. It is true that it charges the acts *408and omissions of the defendant as wrongful and negligent, whereas the law is that the liability for breach of the duty imposed by these provisions- is absolute, and does not depend on negligence at all (Dorrity v. Rapp, 72 N. Y. 307): The learned trial Judge took the learned pleader at his word,- however, and charged the jury that if there was no negligence the plaintiff could not recover, and when requested to correct this, and charge that the! liability was absolute* and not dependent .on negligence, refused, on the ground that- the complaint was for negligence. It would be entirely agreeable to me to - side with -him, for courts should not be misled by such slovenly and unscientific ple'adings, and then have error predicated thereon. But in the looseness of our practice, this, it seeiqs, will not -do'. It is quite the custom, for instance, for answers to set up things as affirmative defences, which are not defences at all, but embraced in the issue raised by denial or denials ; and yet if a trial Judge in such a case takes the pleading at its word, and charges the jury that 'the burden is on the defendant to make out his pleaded defence by a preponderance, of evidence, he. will be held in error (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45). I therefore suppose we must regard the words “ wrongful ” and “ negligent ” in tliis complaint as mere surplusage, attributable to the immemorial desire of pleaders to deal in hard words, out of which no pleader nor any one else ever yet got. a dividend.
The complaint does not plead the said section, of the Building Code, or allege the violation of any duty imposed by it. But that was not necessary. It is never necessary to allege the law, common or statute, which makes the defendant liable. The way is to allege the acts or omissions which did the injury, and if they were a breach of duty, whether by common law or by statute matters not. In either case, and the same in each, .the law is not pleaded but only cited -to the court on the trial to show the acts or omissions which are breaches of duty. It is true that when an action oí defence is “founded on” a private statute, which phrase embraces city or local ordinances, the private statute or ordinance has to be pleaded, except where it has been referred to and recognized by a public- statute, in which case the courts will take -notice of it the same as of public statutes, without it being pleaded (20 Encyc. Pl. & Pr. 597); and that is the case with this Building Code (N. Y. *409Charter, see. 407). It is a common, thing in actions for negligence to put ordinances in evidence to prove or help to prove negligence, without 'their having been pleaded, and they do not need to be pleaded.
Judgment and order reversed and new trial granted, costs to abide the event.