#### Minnie Adlin, as Administratrix, etc., of Elimelech Adlin, Deceased, Plaintiff, *v.*The Excelsior Brick Company of Haverstraw and Others, Defendants.

Second Department,

December 30, 1908.

Tort—cave in caused by removal of lateral support—question as to whether excavation was nuisance is for the jury.

The owner of lands is bound to give lateral support to an abutting highway, and if he wrongfully excavates so close as to cause it to cave in, he is liable for injuries caused thereby.

In an action to recover for the death of the plaintiff’s intestate, who was killed by the caving in of a highway, it is for the jury to say whether an excavation made by the defendant upon adjoining land was so close as to endanger the safety of the highway and was, therefore, a nuisance.

Exceptions by the plaintiff, Minnie Adlin, as executrix, etc., ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the *714close of the plaintiffs case upon a trial at the Kings County Trial Term in April, 1908.

The action was to recover damages for the death of the plaintiffs intestate.

*Jonathan Deyo [John M. Gardner*and *Frederick L. Taylor*with him on the brief], for the plaintiff.

*Stephen C.*Baldwin, for the defendants Excelsior Brick Company and others.

*Walter C.*Anthony, for the defendants John Nicholson and John Reilly.

Per Curiam:

The defendant The Excelsior Brick Company owns a plot of land on the west bank of the Hudson river at the village of Haverstraw, which extends west to Rockland street, and lies between Division and Clinton streets, which run from the river to and across Rock-land street about 200 feet apart, Rockland street running north and south, and Division street being to the south of Clinton street. The said defendant excavated this land for the purpose of taking out clay to make bricks. Prom Clinton street south toward Division street the crest of the excavation came up to the street line, and thence diverged along until at and near the corner of Division street it was about 53 feet from the street line; and thence the crest line bowed around the angle of Rockland and Division streets, and then gradually drew in toward the street line of Division street until it touched it. The excavation was about 70 'feet deep along Division street and 55 feet along Rockland street, and sloped downward from the crest, the base of the section being about 55 feet wide. Division street at and near the corner of Rockland street caved into the excavation, and about 15 minutes later Rockland street at and near the said corner caved .in also. The plaintiff’s intestate was on Rockland street, and was carried into the excavation with the slide and killed. The briefs of all the parties concur in saying that the ob ject of the court in dismissing the complaint at the close of the plaintiff’s case was to get an expression of the views *715of this court as a guide in this case and in a large number like it which are awaiting trial. The record does not disclose on what theory the dismissal was granted, nor do the briefs of the several respondents state any ground on which to base it. It is not made apparent why it was granted. It is not disputed that the rule of lateral support binds the owner of land along a highway, and that if he wrongfully excavate so close as to cause the highway to cave in he is liable for any damage caused thereby. (*Village of Haverstraw*v. *Eckerson, Nos. 1 & 2,*124 App. Div. 18.) Whether the excavation was so close as to endanger the safety of the highway, and, therefore, be a nuisance, was a question of fact; and on this head the closeness of the crest to the street, the perpendicular depth of the excavation, the length of the slope, the base of the section, the nature of the earth, and the like, were all to be considered by the jury on the question whether the excavation could reasonably be deemed a nuisance. In justice to the learned trial judge it may well be said that the testimony for the plaintiff could easily have been freed of much useless and confusing matter, and presented with forceful brevity, and systematically.

The owners or tenants of the next two plots of land to the north were also made defendants for no apparent reason, which added to the confusion. Nor was any case made against the director and superintendent of the said defendant The Excelsior Brick Company.

The judgment should be reversed as to the defendant The Excelsior Brick Company, and affirmed as to all of the other defendants.

Woodwarb, Jerks, G-ayror, 'Rich and Miller, JJ., concurred.

Judgment reversed as to the defendant The Excelsior Brick Company, and new trial granted, costs to abide the event, and affirmed as to the other defendants, with costs.