On appeal from the Essex County Circuit Court.
For the appellant, Corwin Howell (Frederick Frelinghuysen, Jr., on the brief).
For the respondent, Joseph Coult.
The opinion of the court was delivered by
PARKER, J. The complaint was in nine counts, but all except the first and fifth were abandoned at the trial. The suit arose out of the facts that the savings institution, owning a lot of land adjoining plaintiff's building, contracted with one Howie, a competent contractor, to excavate its lot for the foundation of a new building; that such excavation was for
a depth of approximately nine feet below the curb level; that as a result of doing that work, as the jury evidently found, the adjoining wall of plaintiff's building settled and damage resulted. The first count was based on the statute of 1871 (Comp. Stat., p. 3926, pl. 1; title amended in Pamph. L. 1909, p. 201), the language of which is as follows: "That whenever excavations hereafter commenced, for building or other purposes, on any lot or piece of land, shall be intended to be carried to the depth of more than eight feet below the curb or grade of the street, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary line of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times, from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before such excavations were commenced." This count charges the savings institution alone, as "the person causing such excavations to be made."
The fifth count sets up the contract of the savings institution with Howie, and alleges negligence by him in doing the work, to plaintiff's damage. This count is directed against Howie alone.
The jury found for the plaintiff as against the savings institution, and for the defendant Howie as against the plaintiff, and the savings institution appeals.
There are twelve grounds of appeal, and all are urged for reversal; but as they were grouped under four points in the brief and at the argument, it is convenient to deal with them similarly at this time.
Point 1 is stated thus in the brief: "Howie, as an independent contractor, was liable under the statute [if there was liability] and the bank was not liable." This is argued in several aspects; but they all cluster around the proposition that when the statute uses the language "the person causing such excavations to be made" it must be construed to mean
the contractor when the owner lets out by contract the work of making the excavation: and that in this case the statutory duty is laid on Howie, the contractor, and the owner by contracting with him escapes all responsibility in the premises. To this view we cannot give our assent. Apart from other reasons, we are clear that an owner by engaging a contractor to dig on his land a hole of stated dimensions and depth is himself "the person causing such excavation to be made:" for without his employment of the contractor there would be no excavation. This is the view taken by the Court of Appeals of New York touching a statute of that state couched in precisely the same language, passed in 1855, and from which our act was doubtless copied. Dorrity v. Rapp, 72 N.Y. 307. The case was decided after the New Jersey enactment of the statute in ...