March v. City of New York, 69 A.D. 1 (1970)

Per Curiam:

The action was brought to restrain the defendants from entering upon plaintiff’s premises on the northeast corner of Elm and Spring streets and underpinning his buildings, and from making excavations in the streets in front thereof for their underground rapid transit railroad, tunnel and. station. It is conceded that the city owns the fee in the streets, that the board of rapid transit railroad commissioners was empowered by the Legislature to enter into the contract under which the work is being done for and on behalf of the city, and that the Rapid Transit Act (Laws of 1891, chap. 4, as amended) authorized the board to acquire any real estate or appurtenant easements necessary to be acquired for the purpose of constructing the railroad. Furthermore, no complaint is made that the contractors engaged in the work are doing it improperly or carelessly; but the plaintiff stands squarely on the position that as an abutting property owner he has certain easements in the street which are being interfered with and destroyed. He insists that the failure of the Rapid Transit Act to provide compensation to him for the taking of these easements renders it unconstitutional, and that there is nothing in the act which, without "making compensation, entitled the defendants to invade his premises and remove the soil from under his buildings and foundation walls for the purpose of underpinning the same, thereby endangering them and- destroying his cellars and sub-cellars.

*3We desire to add nothing to what was stated in the opinion of Judge Bischoff on the original motion,* who decided these various contentions against the plaintiff, except with regard to the right of the defendants to enter the premises for the purpose of underpinning the buildings, and who said that to that extent “ a case for an», injunction is presented grima faoie? Leave was then given to then defendants, however, to submit affidavits upon this matter, and the» subject was thereafter considered by another judge, when it appeared! that if underpinning were not provided it was probable that the buildings would tumble into the excavation, thus causing not only the destruction of the buildings, but danger to the public. Considering the depth to which the defendants had to excavate, they were bound, under the law, to ask the consent of the plaintiff and at their own expense to shore up his buildings. The plaintiff, however, resting on his strict legal rights, refused such consent, and, therefore, it was evident that, without injury to the property and danger-to the public, the work could not proceed unless the defendants placed underpinning beneath the buildings.

*4Upon these facts we think that they were justified in resorting to that course in order to prevent the consequences that would otherwise ensue; and if to accomplish this object they have made an ¡unauthorized entry on. plaintiff’s premises and have damaged his. cellars and' sub-cellars they are liable therefor in damages. As the-plaintiff may thus recover compensation to the extent he can show he has been damaged, we do not think, under the peculiar circumstances presented, though there may be a technical trespass (which we do n.ot decide, but leave to be-determined on the trial), that the-defendants should be enjoined in the meantime from carrying on what is conceded to be an important public work.

The order accordingly should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien, Ingraham and Hatoh, JJ.

¡Order affirmed, with costs.

The following is the opinion delivered on the original motion:

.Bischob'í’, J.:

From the allegations of the complaint it is apparent that the work of excavation adjacent to plaintiff’s premises, for the purposes of the underground railway, is performed in purported compliance with the statute whereby the construction of the railway was authorized, and no departure from the lawful authority thus given is suggested sufficiently to call for answering averments upon the part of the defendants. So far, therefore, as injury is asserted to arise from the loss of the customary means of access over the street, or from a polluted condition of the air, due to the presence of the excavation, no ground for an injunction is presented, the injury being traced merely to the proper performance of work entailing temporary inconvenience, but prosecuted in the interest of the public under due legislative and municipal authority. (Uppington v. City of New York, 165 N. Y. 222; Atwater v. Trustees, etc., 124 id. 602; Bates v. Holbrook, 35 Misc. Rep. 342.) The papers afford no basis for the conclusion that the maintenance of this railway under the street, when completed, will, or necessarily should, amount to a use inconsistent with street purposes, and I cannot hold, as matter of law, that the prosecution of the work will ultimately impose a burden upon the property owners such as would amount to an unconstitutional encroachment upon their rights of property. As to the claim of a right to lateral or sub-adjacent support, it does not appear that the.plaintiff’s land, apart from the building, is endangered, and no right to support for the building from adjacent land exists, at least in the absence of some express grant (Radcliff’s *4 Executors v. Mayor, 4 N. Y. 195), or possibly by prescription under special circumstances. (Dorrity v. Rapp, 72 N. Y. 309.) The allegation of the complaint that the plaintiff is entitled to such support amounts to a conclusion of law, not ¡borne out by the facts pleaded, and is unsubstantiated by any matter contained in the moving affidavits. Therefore no right is set forth which can properly call for the issuance of an injunction upon this head. It being alleged that the fee of the street is in the defendant, the city of Flew York, and the work complained of being in pursuance of such authority as the city had in its power to give, under the contract, no trespass is disclosed in the destruction of the vault- maintained, presumptively, by virtue of a license from the city. As matter of law, the plaintiff could have no right to possession of this portion of the street, as against the city, and,- as matter of fact, the only reasonable inference from the averment is that any existing license for the use of the vault was revoked by the ¡municipal authorities when the contract for this work was entered into. It is alleged-directly, however, that the defendants threaten to enter upon plaintiff's premises for the purpose of underpinning his building, and, to the extent that ah intended trespass is thus disclosed, a case for aninjunction is presented, prima jade, should the plaintiff insist upon obtaining an order which cannot, under the circumstances, be of apparent benefit to him. In accordance with the understanding at the argument, leave will be given to defendants to submit answering ' affidavits upon the question of this threatened trespass, the motion in other respects being denied, or, should the plaintiff so elect, an order denying the motion may be presented with a recital of the withdrawal of the: claim to an injunction as to the threatened entry for the purpose of protecting the building.

March v. City of New York 69 A.D. 1

James E. March, Appellant, v. The City of New York and Others, Respondents.

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