Vance v. Yonkers Contracting Co.

280 A.D. 839, 113 N.Y.S.2d 733, 1952 N.Y. App. Div. LEXIS 3869

Opinion

Action on contract to recover damages for injury to real property caused by excavation and blasting in connection therewith. Plaintiffs are the owners of real property. Defendant is the excavation contractor on property adjacent thereto. In a contract with the owner of that property defendant agreed that it “ shall protect the owners of adjacent property from injury arising from the carrying out of this contract, and shall make good any such damage and injury ”. The jury rendered a verdict in plaintiffs’ favor for $1,377, which the plaintiffs stipulated to reduce to $1,170. Defendant appeals from the judgment entered thereon. Judgment of the County Court, Westchester County, unanimously affirmed, with costs. The cause of action is based solely on contract, not in negligence or nuisance, and no question of indemnity is involved. The contract provision, which is the basis of the action, was made directly for the benefit of a class to which plaintiffs belonged. (Cherry v. Mount Vernon Gontr. Corp., 278 App. Div. 769; MeClare v. Massachusetts Bonding & Ins. Co., 266 R. Y. 371.) Present —Rolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ. [See post, p. 933.]