McCahill v. John H. Parker Co.

49 Misc. 258, 97 N.Y.S. 398

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1906
• Status: Published

Opinion

Dowling, J.

Plaintiffs are the owners of premises Ho. 11 West One Hundred and Thirty-second street, Hew York city. Defendant was the contractor engaged in doing all the work in the erection of a building adjoining on the west, except the excavation, steel construction and laying of sidewalk. During the progress of defendant’s work, bricks and mortar the roof of plaintiffs’ premises, breaking the same and causing leaks therein, necessitating two separate repairs thereof, at an expense respectively of twenty-nine dollars and fifty dollars. The bricks and mortar from the adjoining building also fell into the yard of the premises, destroying sodding and bushes therein, to the extent of thirty-eight dollars. A bridge was erected, resting on plaintiffs’ sidewalk, and barrels of cement and quantities of building material were dumped upon said sidewalk to be used in defendant’s work, causing damage to the sidewalk and parts of the stoop in the sum of about fifty dollars. Eepainting of plaintiffs’ house and stoop was necessitated by the falling of brick and mortar and the sprinkling thereon of the acid used to clean down the walls of the building being erected by defendant to plaintiffs’ damage fifty dollars. All these things are proven to have occurred while defendant’s work was going on and as the result of the casting or falling upon plaintiffs’ premises of various substances hereinbefore referred to. The acts complained of and established by proof amounted to a trespass and, for the damage thus caused, defendant was liable. Since the case of Hay v. Cohoes Co., 2 N. Y. 159, it has been uniformly held that where one, in making improvements, trespasses on or injures his neighbor’s property by casting material thereupon, he is liable, absolutely, lor the damage, irrespective oí any question of care or negligence. Plaintiffs were entitled to the undisturbed possession of their premises and to he protected againt any invasion thereof by defendant, and are entitled to damages for the injuries caused by the latter’s trespass. The alleged settlement sought to be established by defendant was not made with the infant plaintiffs, but only with their mother, not the owner of the fee and, as far as the present state of the proof shows, wás to apply only to the inside damages to said premises, and had no application to the damage to the roof, exterior or yard of said premises.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.

Scott and Blanchard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.