Patterson, P. J.:
The defendant Egan was the owner of two lots of land with the buildings thereon, known as Mos. 65 and 67 East Eighth street, in the borough of Manhattan, in the city of Mew York. The plaintiffs, on April 1, 1904, hired from the defendant Egan the third loft of the building Mo. 65 East Eighth street, for a period expiring January 1, 1905, at a monthly rental of fifty dollars, and occupied the same until the thirtieth of May of the same year. The plaintiffs had upon the premises merchandise and other personal property. On the day last mentioned, the building (No. 65) collapsed and according to the averment of ’ the complaint, property of the plaintiffs óf considerable value was destroyed thereby. It is alleged in the complaint that the building fell and the property was destroyed because the defendant Egan (and others sued with him) wrongfully, illegally and negligently dug into and Upon the ground of the adjoining premises (No. 67). in excess of ten feet in depth below the curb, and wrongfully, illegally and negligently failed properly to shoré up the said premises occupied by the plaintiffs, or otherwise to support them, as required by law, although they could have obtained permission from the owner and tenants of the said premises to enter the same for the purpose of making such shoring, and although such support, shoring and appurtenances for the safety of the said premises could have been made on the outside thereof, upon the premises occupied by the defendants for the purpose of the digging, as aforesaid, and wrongfully, illegally and negligently dug away and weakened the foundations of the premises [514]*514occupied by the plaintiffs as aforesaid, by reason whereof and of the defendants’ negligence, and without any negligence on the part of the plaintiffs, the said building occupied by the plaintiffs, as aforesaid, fell and was destroyed, and the property of the plaintiffs being in and upon the said premises, as aforesaid", of the value as aforesaid, was totally destroyed.
The defendant Egan, in his 'answer, denied those allegations of the complaint, and set up as an affirmative defense that he had contracted with the Dearborn Construction Company (one of the defendants) to do certain work and perform and furnish materials for remodelling the building No. 65 East Eighth street, and for building an extension to the building No. 67 East Eighth street, in accordance with plans and specifications ón file with and approved by the building department of the city of New York, and that the Dearborn Construction Company had possession of and the entire and exclusive control of such work and workmen and the furnishing materials under its contract, and was still in the possession of such buildings at the time of the fall thereof mentioned in the complaint. The Dearborn' Construction Company failed to appear on the trial of the cause and a verdict was rendered against the defendant Egan and that company. The defendant Egan made a motion for a new trial on -all- the grounds stated in section 999 of the Code of Civil Procedure, which motion was denied, and from the judgment entered upon the verdict and from the order denying a motion for a new trial the defendant Egan appeal's.
On the trial the last named defendant moved to dismiss the complaint at the close of the plaintiffs’ case in chief, on the ground that the plaintiffs had failed to sustain any of the allegations of negligence set forth in the complaint, which was all the negligence alleged upon which the action was brought; and- at "the conclusion of the whole case the motion was renewed on the same grounds, and on the additional ground that it appeared in evidence that the defendant Egan employed a competent architect and a competent builder, and that the work being done under plans and specifications approved by the building 'department of the city of New York, and the work then being in the hands' of an independent contractor, he, Egan, was absolved from liability. The motion for nonsuit being denied, the case was sent to the'jury by the trial] ustice upon the specific ground [515]*515that the defendant was liable, if at all, only because of a violation of section 22 of the Building Code of New York, which provides that all excavations for buildings shall be properly guarded and protected, and that whenever an excavation of either earth or rock for building or other purposes shall be intended to be or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times from the commencement until the completion thereof, if afforded the necessary license to enter upon the adjoining land, and not otherwise, at his or their own expense, preserve any adjoining or contiguous wall or walls, structure or structures, from injury, and support the same by proper foundations, so that' the said wall or walls, structure or structures, shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining or contiguous wall or walls, structure or structures, are down more or less than ten feet below the curb.
The trial justice specifically charged the jury that: “If this defendant Egan caused this excavation to be made it became his duty under the statute to guard and support this adjoining structure so as to preserve it in such manner that it remained practically as safe as before such excavation was commenced. If he failed to do so, and the falling of the wall and the" collapse of this building were due to such failure on his part to comply with the statute, he is liable for the damages resulting to plaintiff from such failure to comply with the statute.” He also charged the jury as follows : “ If you find that the collapse of the building was not caused by a failure on the part óf the defendant Egan to properly shore up and protect and support the building occupied by the plaintiffs during the progress of the excavation work, * * * the plaintiffs would not be entitled to recover in this action for the reason that such a cause of action is not set up in the complaint.”
It is thus obvious from the whole case that the liability of the defendant Egan sought to be enforced in this action was presented to the jury as arising solely from a violation of or non-compliance with the provisions of section 22 of the Building Code applying in the city of New York, and upon the theory that the violation of a statute which imposes a duty upon any person may furnish a right of action for damages to any one who has an interest in its observ[516]*516anee, it being shown that the injury was the direct or necessary result of such violations. ( Willy v. Mulledy, 78 N. Y. 310; Huda v. American Glucose Co., 154 id. 474; Pauley v. S. G. & L. Co., 131 id. 90.) It is disclosed by the record that there was a wall standing upon Egan’s land which separated the two buildings: It is also clearly established that the defendant Egan and his contractor did not excavate to the depth of ten feet below the surface, although in his evidence one of the plaintiffs indulged in a mere guess that such excavation was actually made. It does -appear, however, that the fall of the building was caused by some negligence of Egan or the contractor. The front of building No. 65 had been taken out and-in the progress of the work of alteration of the buildings a mass of debris or material was deposited upon one of the floors of the building No. 65, and a supporting beam was withdrawn from the wall. It was undoubtedly the superincumbent weight of this -mass of material, in connection with the general weakening of the structure,, that caused the disaster.
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Patterson, P. J.:
The defendant Egan was the owner of two lots of land with the buildings thereon, known as Mos. 65 and 67 East Eighth street, in the borough of Manhattan, in the city of Mew York. The plaintiffs, on April 1, 1904, hired from the defendant Egan the third loft of the building Mo. 65 East Eighth street, for a period expiring January 1, 1905, at a monthly rental of fifty dollars, and occupied the same until the thirtieth of May of the same year. The plaintiffs had upon the premises merchandise and other personal property. On the day last mentioned, the building (No. 65) collapsed and according to the averment of ’ the complaint, property of the plaintiffs óf considerable value was destroyed thereby. It is alleged in the complaint that the building fell and the property was destroyed because the defendant Egan (and others sued with him) wrongfully, illegally and negligently dug into and Upon the ground of the adjoining premises (No. 67). in excess of ten feet in depth below the curb, and wrongfully, illegally and negligently failed properly to shoré up the said premises occupied by the plaintiffs, or otherwise to support them, as required by law, although they could have obtained permission from the owner and tenants of the said premises to enter the same for the purpose of making such shoring, and although such support, shoring and appurtenances for the safety of the said premises could have been made on the outside thereof, upon the premises occupied by the defendants for the purpose of the digging, as aforesaid, and wrongfully, illegally and negligently dug away and weakened the foundations of the premises [514]*514occupied by the plaintiffs as aforesaid, by reason whereof and of the defendants’ negligence, and without any negligence on the part of the plaintiffs, the said building occupied by the plaintiffs, as aforesaid, fell and was destroyed, and the property of the plaintiffs being in and upon the said premises, as aforesaid", of the value as aforesaid, was totally destroyed.
The defendant Egan, in his 'answer, denied those allegations of the complaint, and set up as an affirmative defense that he had contracted with the Dearborn Construction Company (one of the defendants) to do certain work and perform and furnish materials for remodelling the building No. 65 East Eighth street, and for building an extension to the building No. 67 East Eighth street, in accordance with plans and specifications ón file with and approved by the building department of the city of New York, and that the Dearborn Construction Company had possession of and the entire and exclusive control of such work and workmen and the furnishing materials under its contract, and was still in the possession of such buildings at the time of the fall thereof mentioned in the complaint. The Dearborn' Construction Company failed to appear on the trial of the cause and a verdict was rendered against the defendant Egan and that company. The defendant Egan made a motion for a new trial on -all- the grounds stated in section 999 of the Code of Civil Procedure, which motion was denied, and from the judgment entered upon the verdict and from the order denying a motion for a new trial the defendant Egan appeal's.
On the trial the last named defendant moved to dismiss the complaint at the close of the plaintiffs’ case in chief, on the ground that the plaintiffs had failed to sustain any of the allegations of negligence set forth in the complaint, which was all the negligence alleged upon which the action was brought; and- at "the conclusion of the whole case the motion was renewed on the same grounds, and on the additional ground that it appeared in evidence that the defendant Egan employed a competent architect and a competent builder, and that the work being done under plans and specifications approved by the building 'department of the city of New York, and the work then being in the hands' of an independent contractor, he, Egan, was absolved from liability. The motion for nonsuit being denied, the case was sent to the'jury by the trial] ustice upon the specific ground [515]*515that the defendant was liable, if at all, only because of a violation of section 22 of the Building Code of New York, which provides that all excavations for buildings shall be properly guarded and protected, and that whenever an excavation of either earth or rock for building or other purposes shall be intended to be or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times from the commencement until the completion thereof, if afforded the necessary license to enter upon the adjoining land, and not otherwise, at his or their own expense, preserve any adjoining or contiguous wall or walls, structure or structures, from injury, and support the same by proper foundations, so that' the said wall or walls, structure or structures, shall be and remain practically as safe as before such excavation was commenced, whether the said adjoining or contiguous wall or walls, structure or structures, are down more or less than ten feet below the curb.
The trial justice specifically charged the jury that: “If this defendant Egan caused this excavation to be made it became his duty under the statute to guard and support this adjoining structure so as to preserve it in such manner that it remained practically as safe as before such excavation was commenced. If he failed to do so, and the falling of the wall and the" collapse of this building were due to such failure on his part to comply with the statute, he is liable for the damages resulting to plaintiff from such failure to comply with the statute.” He also charged the jury as follows : “ If you find that the collapse of the building was not caused by a failure on the part óf the defendant Egan to properly shore up and protect and support the building occupied by the plaintiffs during the progress of the excavation work, * * * the plaintiffs would not be entitled to recover in this action for the reason that such a cause of action is not set up in the complaint.”
It is thus obvious from the whole case that the liability of the defendant Egan sought to be enforced in this action was presented to the jury as arising solely from a violation of or non-compliance with the provisions of section 22 of the Building Code applying in the city of New York, and upon the theory that the violation of a statute which imposes a duty upon any person may furnish a right of action for damages to any one who has an interest in its observ[516]*516anee, it being shown that the injury was the direct or necessary result of such violations. ( Willy v. Mulledy, 78 N. Y. 310; Huda v. American Glucose Co., 154 id. 474; Pauley v. S. G. & L. Co., 131 id. 90.) It is disclosed by the record that there was a wall standing upon Egan’s land which separated the two buildings: It is also clearly established that the defendant Egan and his contractor did not excavate to the depth of ten feet below the surface, although in his evidence one of the plaintiffs indulged in a mere guess that such excavation was actually made. It does -appear, however, that the fall of the building was caused by some negligence of Egan or the contractor. The front of building No. 65 had been taken out and-in the progress of the work of alteration of the buildings a mass of debris or material was deposited upon one of the floors of the building No. 65, and a supporting beam was withdrawn from the wall. It was undoubtedly the superincumbent weight of this -mass of material, in connection with the general weakening of the structure,, that caused the disaster. Whether the plaintiffs might maintain an action against their- landlord for-damages sustained by reason of this negligence it is not now material to inquire. The trial judge instructed the jury that damages caused by such negligence could not be recovered ■ in this action, and, therefore, the single question upon this appeal relates to the existence of a liability of the defendant Egan, based solely upon his failure to comply with the provisions of the Building Code above referred to. If such liability exists, the trial judge was quite right in stating to the jury that the defense of the work béing under the charge of an independent contractor could not avail the owner, for he being under a statutory duty, was' bound to perform it; but we are of opinion that those portions of ’section 22 of the Building Code, the violation of which was regarded by the trial judge as furnishing a cause of action to the plaintiffs, are not applicable under the ,facts disclosed by this record and in an action between the tenant and his landlord. The section referred to is substantially a re-enactment of chapter 6 of the Laws of 1855,
It'is obvious, we think, that the scope of this statute is confined to relations existing between different owners of contiguous lots of land with buildings thereon, and hence where the same person oxvns both pieces of property, the statute does not apply. There may be a liability of the defendant Egan for the damage which the plaintiffs sustained by reason of the acts of Egan, or of his agents resulting in loss and damage to the plaintiffs. We are not called upon to decide that question in this action, but we are limited to the consideration of a right of action based upon non-compliance with the requirement of a law which applies only to adjoining own[518]*518ers of property and concerns their right and obligations and does not regulate the relations existing between landlord and' tenant.
We, therefore, are of the opinion that this action was brought under a misconception of the plaintiffs’ proper rights and remedy, and that the judgment and order must-be reversed and a new trial ordered. We do not intend hereby in any way to decide or intimate that the plaintiffs may not maintain a properly constructed action against the defendant Egan for damage sustained by reason of the collapse of the building in which their merchandise was stored.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
■ McLaughlin and Houghton, JJ., concurred; Laughlin and Lambert, JJ.;. dissented.
See Consol. Act (Laws of 1882, chap. 410), §§ 473, 474, as amd. by Laws of 1885, chap. 456; Laws of 1887, chap. 566, and Laws of 1892, chap. 275. See also Cosby’s Code Ord. (Anno. 1907), 174,175.— [Rep.