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Von Longerke v. City of New York

Supreme Court of New York, Appellate Division

April 4, 1912

JUSTUS VON LENGERKE and ERNST DETMOLD, Copartners, Doing Business under the Firm Name and Style of VON LENGERKE & DETMOLD, Appellants, Respondents,
THE CITY OF NEW YORK and JAMES PILKINGTON, Appellants, Impleaded with OTTO M. EIDLITZ and ROBERT J. EIDLITZ, Individually and as Copartners, Doing Business under the Firm Name and Style of MARC EIDLITZ & SON, Respondents.

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APPEAL by the plaintiffs, Justus Von Lengerke and another, copartners, etc., from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of June, 1910, as dismisses the complaint by direction of the court after a trial at the New York Trial Term as to the defendants Otto M. Eidlitz and another, individually and as copartners. Also separate appeals by the defendants, James Pilkington and The City of New York, from the said judgment of the Supreme Court in favor of the plaintiffs and against said defendants, entered upon the verdict of a jury for $7,148.99, rendered by direction of the court, and also from separate orders entered in said clerk's office on the 27th and 29th days of June, 1910, respectively, denying the said defendants' motions for a new trial made upon the minutes.


Montgomery Hare, for the plaintiffs.

J. Arthur Corbin, for the appellant Pilkington.

Clarence L. Barber, for the appellant The City of New York.

Frederick Hulse, for the respondents Eidlitz.


In 1905 the defendants Eidlitz, as general contractors, were engaged in erecting a large building between Thirty-fourth and Thirty-fifth streets on the east side of Fifth avenue in the city of New York. In carrying out the contract it became necessary for them, in order to make proper sewer connections with the building to be erected, to dig a tunnel under the roadbed of Fifth avenue parallel to the curb from about the center of the building to be erected to a point some sixty feet south of Thirty-fourth street. To do this work they sublet a contract to one Byrne, who, in turn, sublet it to the defendant Pilkington. Thereafter the city issued permits for the work and Pilkington started excavating at the southerly end, and on January 5, 1906, had proceeded about forty feet when a large water main which ran down Fifth avenue close to the tunnel

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broke nearly in front of the plaintiffs' store. The water escaping from the main flowed into the street and a portion of it entered the basement of the plaintiffs' store through the cellar wall, injuring and destroying their goods to the extent of several thousand dollars and prevented one of their salesrooms being used for several months. This action was brought to recover the damages alleged to have been sustained by reason thereof. At the close of the trial the court submitted to the jury five specific questions of fact: (1) Were the plaintiffs free from negligence; (2) was the City of New York guilty of negligence; (3) were the defendants Eidlitz guilty of negligence; (4) was defendant Pilkington guilty of negligence; and (5) what was the amount of damage, if any, suffered by the plaintiffs? The first four questions were answered in the affirmative and the fifth, $7,148.99. The court thereupon directed a verdict for this sum against the defendants City of New York and Pilkington, and dismissed the complaint against Eidlitz & Son. To such direction appropriate exceptions were taken by the city and Pilkington, and the plaintiffs also excepted to the dismissal of the complaint as to Eidlitz & Son. Judgment was thereafter entered in conformity with the verdict directed, and the plaintiffs appeal from so much of it as dismissed the complaint as to Eidlitz & Son, and the City of New York and Pilkington separately appeal from the judgment and also from orders denying their respective motions for a new trial.

I am of the opinion that the disposition made by the trial court is correct. First, as to the defendant Pilkington. There is ample evidence to support the finding that the break in the water main was caused by the negligent manner in which the tunnel was constructed. The city gave its permit to construct, according to a plan, a tunnel, which was to be between four and five feet wide, of about the same height, and to run parallel to and about four feet westerly of the easterly curb of the avenue. Had this plan been followed, the tunnel would not, at any place, have been within eight feet of the main which was broken. The plan was not followed. It seems to have been abandoned and the tunnel dug some ten feet farther to the west, which brought it under one large water main which should have been parallel to it, and, according to the plaintiffs'

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evidence, partially under the second main, which broke. There can be little doubt, when all of the evidence bearing on the subject is considered, that the breaking of the main was caused by the failure to follow the plan. The break occurred just about where the tunnel passed under the main which broke, and there was only about six inches of rock intervening between the top of it and the main. The excavating was done by means of blasting, and close to the place where the pipe broke there was a hole in the roof of the tunnel, but just how that was caused does not appear. Undoubtedly the breaking of the main was caused either by blasting or else the removal of the rock which supported it, or both. But the appellant Pilkington insists that the judgment is erroneous as to him because the work was done not by him but by the Pilkington Construction Company. He testified that the Pilkington Construction Company is a domestic corporation, of which he is the president, treasurer and one of the directors, and that he, as its president, did the excavating under a contract made by it and not by himself individually. The court left it to the jury to say whether it was Pilkington personally or the Pilkington Construction Company which had made the contract and done the work. The jury found it was Pilkington personally, and the evidence is sufficient to sustain the finding. The contract with Byrne, in so far as it was evidenced by any writing, was a letter addressed to the Pilkington Construction Company, but there was no documentary proof to show that any company by that name had ever been incorporated, which is a suspicious circumstance in and of itself. Pilkington testified there was such a corporation; that its capital stock was $2,500; that he was the owner of ten shares; that it had an office in a private residence, but there was nothing to indicate by sign or otherwise that it had an office ...

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