Plaintiffs’ complaint as limited by their bill of particulars alleges that in August, September and October, 1940, defendant wrongfully and without exercising due care, in violation of section 22 of the New York Building Code, excavated the rock and dirt, in depth ten feet, on his land, which adjoins plaintiffs’ land in the rear, and by reason thereof plaintiffs lost their retaining wall, trees, shrubs, grass, dirt and top soil, to their damage in the sum of $800. At the time of alleged excavation the property now owned by plaintiffs was owned by a predecessor in title. On the trial plaintiffs’ counsel stated the complaint was for the removal of soil in excess of ten feet, removal of lateral support without shoring and for the keeping of the property in such a condition that when the rains came plaintiffs’ property was caused to fall in, but that plaintiffs did not claim any wrong was committed in the removal of the soil from defendant’s property. It seems obvious that plaintiffs do not claim that defendant should have, but did not," build a retaining wall. The claim is that defendant excavated to a depth of ten feet or more without shoring and that several years later plaintiffs’ retaining wall fell down after heavy rains. Plaintiffs became owners of their property by deed of purchase February 12, 1942. As plaintiffs’ witness, defendant testified the excavation was made in 1938 or 1939. The record does not show when or by whom the retaining wall was erected on the property now owned by the plaintiffs. There was proof that plaintiffs’ property had a residence building on it, and any failure of proof as to when it was erected is that of plaintiffs, who had the burden of proof to establish any violation of statute or law claimed by them. Section 22 of the Building Code was not in effect at the time mentioned in the complaint. While there are similar provisions in the Administrative Code of the City of New York, plaintiffs made no motion to amend or conform pleadings to proof. Plaintiffs argue that defendant removed soil from his property without permission. But defendant needed no permission either from them or their predecessor in title. Defendant acted of his own right. The two properties abutted in the rear and were on different street levels. Defendant had the right to bring his own land to the grade of the street on which it fronted. In doing so he was under a common-law obligation to furnish lateral support to adjoining land in its natural state. No common-law liability is claimed here. He was also required in doing the excavation work to proceed in accordance with statutory provisions. (Administrative Code of the City of New York, §§ 026-384.0, *813C26-388.0, C26-562.0 to C26-563.0; L. 1937, ch. 929; see, also, Sherover Construction Corp. v. City of New York, 162 Misc. 893, and cases cited; Bartsch v. Ragonetti, 123 Misc. 903, affd. 214 App. Div. 799; Jubilee Yacht Club v. Gulf Refining Co., 245 Mass. 60; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Tucker v. Mack Paving Co., 61 App. Div. 521; Bergen v. Morton Amusement Co., 178 App. Div. 400.) As pointed out above, plaintiffs did not claim defendant’s removal of soil from his own land was wrongful. The only seeming appropriate provision in respect of an excavation more than ten feet in depth (the specific claim made by plaintiffs) has to do with such an excavation below the curb level, but there is no evidence to support such a claim. The evidence shows the excavation brought defendant’s land down to the grade of Carpenter Avenue upon which it fronted.
Have the plaintiffs the right to bring an action for violation of the statutory provisions? The action is a personal one for tort for an injury to real property. Plaintiffs do not and could not assert a right in reversion for consequential damage. They were the owners by purchase in possession in 1942 at the time of the damage for which they claim. But their ownership is under a deed of conveyance made to them by the owner who was in possession in 1938 or 1939, at the time the defendant’s excavation was made. The record does not show a transfer or assignment of the prior owner’s cause of action or right to sue, and as the alleged wrong does not appear to be a violation of an obligation which runs with the land, the plaintiffs have not shown their right to bring the action. In the case of Sherover Construction Corp. v. City of New York (supra) plaintiff was the assignee of a long term lessee of a hotel property abutting on a public street in which the defendant City had built a subway. The plaintiff lost on the ground that the City’s duty to protect buildings did not continue long after the subway was completed, that the plaintiff under certain covenants in existing conveyances in reality owed the duty of protection to the City, and the damages awarded in the condemnation proceeding long previously brought and decided had adjudicated any and all questions of damage to plaintiff’s property. We are not unmindful of what was said in Jones on Easements (1898 ed., § 627), quoting from the English case of Bonomi v. Backhouse (E. B. & E. 622, 658 [affd. sub nom. Backhouse v. Bonomi, 9 H. L. Cas. 503, overruling Nicklin v. Williams, 10 Ex. 259; see, also, Roberts v. Read, 16 East 215]). There it was said: “ * * * we think that the right which a man has is to enjoy his own land in the *814state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, subject always to this: that, if his mode of • using it does damage to his neighbor, he must make compensation. Applying these two principles to the present case, we think that no cause of action accrued for the mere excavation by the defendant in his own land, so long as it caused no damage to the plaintiff; and that the cause of action did accrue when the actual damage first accrued.” We gather from the context that there was but one owner, namely, the plaintiff, during all the times of which complaint was made. We note also that here while plaintiffs seem to be suing for damages to plaintiffs’ retaining wall, soil, grass, shrubbery and trees, the question has arisen that in reality they are suing for damages for a failure by defendant to erect a retaining wall on defendant’s property. If .the latter is the damage sought it would seem to have accrued to the then owner when the defendant neglected to comply with the statute, and that cause of action has not been shown to have been transferred or assigned to plaintiffs. In Jones on Easements (§ 625) we find the statement: “ If the party claiming damages by reason of an excavation upon his neighbor’s land has himself done any act contributory to the injury, he cannot recover.” Assuming a right to sue, proof of freedom from contributory negligence was a burden of plaintiffs. It was fair inference that the wall on plaintiffs ’ property was built to retain filled-in soil to bring the rear of that property to the grade of Matilda Avenue on which it fronts. Any proof that such work, fill and grading, was properly done did not do more than present a question of fact.
The question of whether defendant’s alleged failure was the proximate cause of plaintiffs’ damage was also one of fact. We are concerned, of course, only with the plaintiffs’ pleadings and proofs and whether the trial court’s decision was warranted. If plaintiffs have some other cause of action not pleaded, that is something which does not seerh to present a proper subject of decision on this appeal.
It is our view that on the, pleadings and evidence the Trial Justice was warranted in the decision rendered by him for the defendant and the judgment should be affirmed, with twenty-five dollars costs.