Ketcham v. Newman

• Decision Date: 06 February 1894
• Citation: 36 N.E. 197,141 N.Y. 205
• Parties: KETCHAM et al. v. NEWMAN et al.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 205

36 N.E. 197

KETCHAM et al.

v.NEWMAN et al.

Court of Appeals of New York.

Feb. 6, 1894.

Appeal from common pleas of New York city and county, general term.

Action by Andres W. Ketcham and others against Isidor Cohn and Henry Newman for damages caused by a trespass committed by F. & S. E. Goodwin, to whom defendant had let a contract to shore up adjacent buildings while they were excavating on their own lot. From a judgment of the general term (22 N. Y. Supp. 181) affirming a judgment of the trial term for plaintiffs in the sum of $5,000, defendants appeal. Reversed.

Nathaniel Myers, for appellants.

Eugene S. Ives, for respondents.

The other facts fully appear in the following statement by ANDREWS, C. J.:

The plaintiffs were wholesale merchants, and lessees of the first floor and basement of No. 632 Broadway, New York city, where they conducted the business of the sale of millinery goods. The defendants owned the adjacent lot on the south, and, being about to erect a new building thereon, upon a plan which required their lot to be excavated 22 feet below the curb, entered into a written contract with the firm of F. & S. E. Goodwin, professional shorers, whereby that firm agreed as follows: ‘We agree to do the shoring, sheath piling, and bridging (as required by law) that is necessary to erect buildings Nos. 628 and 630 Broadway, running through to Crosby street; do the work, according to plans and specifications, for the sum of the thousand one hundred and seventy-five dollars; work to commence at once when ready, ($1,175;) also agree to be responsible for any accident by improperly doing the work.’ The foundation of the southern wall of the building occupied by plaintiffs was nine feet below the surface, and, unless shored up in some way during the progress of the excavation on the defendant's lot, the wall would naturally be undermined, and would probably fall. The contractors entered upon the premises occupied by the plaintiffs, and inserted needle beams in the basement of the building, breaking the wall for that purpose, and occasioned serious damage to the stock of goods of the plaintiffs from dirt and their exposure to dampness, and greatly hindered them in the transaction of their business. There was conflicting evidence upon the question whether the contractors obtained permission from the plaintiffs to enter the premises for the purpose of shoring up the wall. The plaintiffs denied that such permission was given, and they gave evidence tending to show that they protested against such entry, and that the contractors, in defiance of their protest, invaded their premises, and committed the trespasses of which they complain. On the part of the defendants one of the contractors testified, in substance, that before commencing the work he informed one of the plaintiffs that he was employed to do the shoring, and pointed out what was necessary to be done, that he consented that the witness might proceed with the work. The judge submitted to the jury the question whether such consent was given, and charged them that if consent was given the plaintiffs could not recover in this action. It was conceded that the Goodwins were independent contractors, and the judge so charged the jury. It was shown that they had large experience in this kind of work, and their competency was no questioned. One of the contractors testified that he had 40 years' experience, and he further testified: ‘I know of no other way in which I could have shored up that brick wall than the way which was employed.’ It does not appear that the defendants gave any directions to the contractors during the progress of the work, or that they had any knowledge of the circumstances under which they entered the plaintiffs' premises, or whether such entry was with or without the license of the plaintiffs. Their connection with the transaction commenced and ended, so far as appears, with the making of the written contract above given, except that one of the plaintiffs, after the work had progressed for some time, asked one of the defendants to intercede with the contractors to do the work in a way which would cause them less inconvenience, which he promised to do. The defendants neither employed nor had any control of the men engaged in the work. They were employed and paid by the contractors. The court charged the jury that if the plaintiff gave no license to the contractors to enter the premises to do this work the defendants were liable for the injury sustained by the plaintiffs.

ANDREWS, C. J., (after stating the facts.)

The entry by the contractors upon the premises without the license and against the protest of the plaintiffs was a...