(dissenting). Another trial is factually unnecessary, and without legal justification. This case was tried on the pleadings: The city, by its answer, concededly admitted ownership. The Housing Authority (the members of which are appointed by the Mayor) in its answer to the third-party complaint, denied ownership. Both knew or should have known, the facts were otherwise. The city, in its brief, now says the Housing Authority was in possession and control. The Housing Authority, in which title had vested at pleading time, in its reply brief, now would put the onus on the city alone. Whatever the real reason, whether it was design or culpable negligence, no explanation of the pleadings is vouchsafed' in the record. In my view, it was a bureaucratic case of the left desk not knowing or caring what the right desk had done, and the plaintiff has been victimized by the vacillation or indifference of these branches of the city which have played shuttlecock with his cause.
This we do know: A 15-foot retaining wall of a city school tumbled onto the property of the innocent neighbor (plaintiff) on August 13, 1963, and since that date the plaintiff has gone unrecompensed. At the time of the falling wall, demolition of the school was concededly in progress. At noon, certainly, and at 4:00 p.m., according to the witness Chung Sing Lee, the wall was standing. At about 4:30 p.m., however, he heard a noise, and Jericho-like, the wall came tumbling down. Quoth the wit*181ness Chung Sing Lee: “ I heard noise, the big noise, and then, you know, all the things come from outside * * * We saw— you know, the school, you know — one part of the building still there and the part, you know, facing to my kitchen, is fall down, come down to my kitchen. ”
And at the time of the accident, August 13, 1963, application by the wrecker for demolition had been approved, on July 11, 1963. In requesting such approval, the Housing Authority, by letter, June 26, 1963, said ‘ ‘ the City agreed to furnish the Authority with all municipal services and facilities in connection with the above-mentioned project.” And on August 5, 1963, or eight days before the fall, the records of the Department of Buildings show that it had no objection to ¿he use of mechanical means of demolition. The records also reveal the presence of a crane contiguous to the wall, which from the pictures, looked as though it had been blitzed.
Since the city made no attempt to amend its answer formally, in my view, the Trial Judge exercised right discretion in declining the city’s eleventh hour offer to. amend orally at the trial. True, on May 3,1966, the city served a notice to amend. But the plaintiff immediately notified the city it would object. This was already two years from the time answer was served and almost one year from the time the third-party complaint was served. Yet the city slumbered on. So did the Housing Authority. Neither defendant was stirred into serving pleadings in accordance with the records in their own knowledge or possession. Thus, at the time of the trial, laches had set in. Delay had worked a disadvantage and a prejudice to the plaintiff. The statute, it is claimed, had run as to the Housing Authority. The Duffy Wrecking Co. had gone bankrupt, and the plaintiff, relying on the city’s answer, i.e., that it was the owner, did not call for a marshalling of the Duffy assets or for the appointment of a Receiver. Under these circumstances, the trial court was correct in refusing the amendment belatedly offered at trial.
On the evidence presented by the plaintiff at the trial, and unrefuted, the plaintiff stands on firm ground. For at the end of the plaintiff’s case, with all of the properly drawn inferences running against the defendants, they both refused to go forward. The majority may find Hanley v. Central Sav. Bank (255 App. Div. 542, 543, affd. 280 N. Y. 734) inapplicable, but in that opinion we find the categorical language: ‘ ‘ Demolition of a building in a crowded section of a city should be considered as inherently dangerous (Restatement of the Law of Torts, §§ 412-416). If so, the defendant-respondent bank as owner of the property could not relieve itself of responsibility from trespass by the *182engaging of an independent contractor. (Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217; Rosenberg v. Schwartz, 260 id. 162; Hyman v. Barrett, 224 id. 436; Restatement of the Law of Torts, § 422.) ”
It is also to be noted that recovery in Hanley was upheld on an alternative theory, the court saying (p. 543): “ Even if such work be regarded as not inherently dangerous, still under the circumstances of this case the jury were entitled to find against the bank, though an independent contractor had been hired. (Petluck v. McGoldrick Realty Co., Inc., 240 App. Div. 61.) ”
Relating Hanley to the instant case, the fact that the wall did fall on the property of the innocent taxpayer, while city demolition concededly was in progress, permits the inference that the wall was in a dangerous condition, and failure to adopt proper safeguards preventing collapse, exposes the demolisher to damages. Recent expressions of the Court of Appeals cast light on the underlying principles: ‘ ‘ The rule with respect to ‘ inherently dangerous ’ work is an exception to the general rule that an employer is not liable for the torts of his independent contractor (Prosser, Torts [3d. ed.], § 70, p. 484). This exception is properly applicable to cases such as Rohlfs v. Weil (supra) where the danger is readily apparent and the accident foreseeable.” See McDonald v. Shell Oil Co. (20 N Y 2d 160, 166); and Breitel, J., dissenting in part, in McDonald said (pp. 168-169): “Restatement, Torts, Second, states the rule applicable to the vicarious liability of an owner for work done by an independent contractor involving special dangers:1 One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. ’ (§ 427) * * * Thus, the principle involved is that of nondelegable duty, the service station owner’s responsibility being vicarious and not depending upon evidence of its own negligence. ’ ’
And most recently, the Court of Appeals, in Spano v. Perini Corp. (25 N Y 2d 11, 17 [June 5, 1969]) held that one who engages in blasting is liable without fault, for any injury to neighboring property. Significantly, the court said: ‘ ‘ The question, in other words, was not whether it was lawful or proper to engage in blasting but tvho should bear the cost of any resulting damage — the person who engaged in the dangerous activity or the innocent neighbor injured thereby That is what we *183have before us, the 1 ‘ innocent neighbor ’ ’, who more than six years after the wall fell on his property, is still unrequited in damages by the municipal agencies responsible. I do not necessarily equate blasting with all demolition cases but the expanding concept of liability as expounded in Perini (supra) suggests there be no dilution of the “inherently dangerous ” doctrine when applied to demolition in a crowded section of Manhattan.
Since a new trial will add nothing or little to our present knowledge, the disposition of the majority, in my view, is unnecessarily harsh on a blameless taxpayer, wasteful of judicial time, and inequitable in result. I would affirm now the jury’s verdict and uphold the providently exercised discretion of the Trial Judge.
Stevens, P. J., and Timer, J., concur with McNally, J.; MoGivern, J., dissents in opinion, in which Eager, J., concurs.
Order entered on July 22, 1968, and judgments entered on August 22,1968, and October 9, 1968, reversed, on the law, without costs and without disbursements, the amended complaint dismissed, and, in the interests of justice, without prejudice.