(dissenting in part). I concur with the majority in all respects, except that I dissent as to MacArthur Concrete Pile Corporation and vote to dismiss the plaintiffs’ complaints as well as the Pathe cross claims against this defendant on the ground that no actionable negligence was proved.
The liability of MacArthur could only be based on common-law negligence. The driving of piles is a far less dangerous operation than blasting. It is my opinion that the rule of law enunciated in the blasting cases should be applied to pile-driving. In substance, this rule is that no liability may be imposed for damage to neighboring property from vibration or concussion due to blasting without actual trespass and in the absence of proof that the work was performed in a negligent manner (Page v. Dempsey, 184 N. Y. 245; Booth v. Rome, Watertown & Ogdensburg Terminal R. R. Co., 140 N. Y. 267). The vibration of the earth is as natural a result of a pile-driving operation as is concussion from blasting. Damage consequent upon such vibration, and possibly influenced by some weakness in the construction of the neighboring structure, does not create liability, unless the failure to use due care is established by the evidence directly or by clear inference from the facts. It cannot rest upon conjecture alone (Holland House Co. v. Baird, 169 N. Y. 136, 142).
On the present record MacArthur did nothing that would evidence lack of due care. There was no proof of failure to exercise such care in the method pursued by MacArthur in driving the piles. The plaintiffs point to the fact that piles of two different sizes and types were used, and claim that the jury might infer that no injury would have resulted if only the smaller pile had been used. This, however, is entirely conjectural. There was no testimony showing that standard practice required the use of the smaller piles. In fact, it would be wholly speculative for the jury to find that the job could have been effectively performed by the use of such piles throughout. There was no proof offered in this case such as was introduced in Petillo v. Kennedy & Smith, Inc. (263 App. Div. 821) to show that the piles could have been driven with less power and less vibration. The theory of soil erosion advanced by the expert for the plaintiffs, even if credible, affords no basis for a finding of negligence against the pile-driving contractor, who was not charged with the duty of lateral support.
As MacArthur did not cause the excavation of the plot, it may not be held liable for violation of the provisions of the *712Administrative Code with respect to shoring of the adjoining property. It seems to me that the majority opinion proposes an unwarranted extension of statutory duty and liability in holding that MacArthur is liable to the plaintiffs merely because it proceeded with the pile-driving operation without first seeing that the statute was obeyed by the owner and general contractor.
Clearly there was no basis under the pleadings, the evidence, or the trial court’s charge that would support the plaintiffs’ verdicts against MacArthur on a theory of breach of contract predicated on the assumption that the plaintiffs were third party beneficiaries of the contract between Pathe and MacArthur.
Peck, P. J., Dore and Cohn, JJ., concur with Van Voorhis, J.; Callahan, J., dissents in part ip an opinion.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event, unless the plaintiffs severally stipulate to reduce the amounts of the judgment to $4,000 damages in the case of Agnes Fagan for No. 122 East 107th Street, and $4,500 damages for Helenia Realty Corporation for No. 120 East 107th Street, exclusive of the recovery of costs allowed by the trial court, in which event and as so modified the judgment is affirmed, with one bill of costs to the appellants. Settle order on notice.