Baxter v. York Realty Co.

Full title: LEMUEL W. BAXTER, Respondent, v . YORK REALTY COMPANY, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 9, 1908

128 App. Div. 79 (N.Y. App. Div. 1908)

112 N.Y.S. 455

Opinion

October 9, 1908.

Edward V. Farley [ George F. Alexander with him on the brief], for the appellant.

Rufus L. Scott, for the respondent.

WOODWARD, J.:

This action is brought to recover damages to the plaintiff's building, alleged to be due to the act of the defendant in excavating to a depth of more than ten feet without protecting the plaintiff's walls, in violation of section 22 of the Building Code. The question seriously debated is the application of the ordinance under the circumstances, it being conceded that the defendant's excavation was five feet from the plaintiff's wall. The ordinance provides that where the excavation goes below ten feet, if the other party permits entrance, it shall be the duty of the party excavating to "preserve any adjoining or contiguous wall or walls, structure or structures, from injury," etc. The defendant urges that its excavation was not contiguous within the meaning of the ordinance or regulation, because five feet away. The learned referee has entered into a careful consideration of the word and its use, as well as into the history of the provision in the Code, and reaches the conclusion that the excavation was contiguous, a conclusion which seems well within reason and authority. All the words of a statute are to be given some meaning, if possible, and if it were intended to require that the walls should be adjoining there was no occasion for using the word "contiguous" disjunctively, and if contiguous has a larger meaning, and the situation is within the mischief to be remedied, it is clearly within the statute. Mr. Crabb, in his English Synonymes, classifies together "adjacent," "adjoining" and "contiguous," and, after giving the etymology of these words, illustrates the difference between them in the following manner: "What is adjacent may be separated altogether by the intervention of some third object; `They have been beating up for volunteers at York, and the towns adjacent, but nobody will list.' — Granville. What is adjoining must touch in some part: `As he happens to have no estate adjoining, equal to his own, his oppressions are often borne without resistance.' — Johnson. What is contiguous must be fitted to touch entirely on one side: `We arrived at the utmost boundaries of a wood, which lay contiguous to a plain.' — Steele. Lands are adjacent to a house or town; fields are adjoined to each other; houses contiguous to each other." That is, the word contemplates nearness, but with intervening spaces, as between houses, and when we are contemplating a local city provision, designed to apply to city lots, with contiguous buildings, it seems entirely proper that we should hold that any wall is contiguous which is near enough to be disturbed by the excavation.

The judgment should be affirmed.

JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.

Judgment affirmed, with costs.