Opinion
April 11, 1960
Action by the owners of a one-family house to recover for the damages thereto allegedly caused: (a) by excavating operations on the part of the defendants Melbros Construction Co., Inc., and Manco Construction Corporation in the street in front of plaintiffs' house; and (b) by pile-driving operations on the part of the defendant Anthony Rivara Contracting Co., Inc., in the excavations after they had been completed. The action is predicated upon negligence and upon the violation of sections C26-384.0 and C26-385.0 of the Administrative Code of the City of New York. At the close of the entire case the complaint was dismissed as against the defendant Joseph Panico, doing business as Joseph Panico Son, who constructed the house for plaintiffs. The jury returned a verdict of $8,000 in favor of plaintiffs against the three corporate defendants. The defendants Melbrous and Manco appeal from so much of the judgment thereafter entered as is in favor of plaintiffs against them; the defendant Rivara appeals from so much of said judgment as is in favor of plaintiffs against it. Judgment insofar as it is in favor of plaintiffs against the three corporate defendants reversed on the law, action severed, and a new trial granted as to the issues raised by the complaint and the answers of said corporate defendants, with costs to abide the event. This court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. The learned Trial Justice erred in charging the jury that they should render a verdict of $8,000 if they found in favor of plaintiffs, and in refusing to charge that the jury could render a verdict of less than $8,000. ( Tubiola v. Baker, 225 App. Div. 420, 421-422; Fichter Steel Corp. v. Cox Constr. Co., 266 App. Div. 347, 350.) Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.