The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-05-07
THE TRIBrNE DEFEd TED.


The superior Court Sustnins the Verdict In
Favor Of The sun.
The General Term of the Superior Court
rendered decisions Yesterday in cases argued
on appeal before Chief Justice Curtis andJudsc
Sanford in March last. Among these cascs was
the suit OF the Sun Printing and Publishing
Association against tho Tribune Association.
This was nm action 10 recover some $500 paid
ont Nv the SuN Association ut the request OF
tho Tribune Association in moving certain
machinery nj the time the 7iiIunc building was
put up in May. 1873. Chapter VI. Of the Laws
Of 1855 requires party making excavations in
the city of New York moro than ton feet below
tho curb to support the adjoining wall 10y a
proper foundation. 50 that 1t shall remain ns
firm ms whom the excavation WIS commenced
The person who owns the Hdirioing wall. how
ever must afford the builder wha' tho stutuio
calls I nc necessary license to cntec on tue AL
joining land" $3.50
Now the excavations for the Tribune building
were intended 10 be- carried more than ten i"t
below the curb. The wall Of the SuN building
stood on or near the boundary line Of the 1ii
bioe lot. Within this wall. from two "a I'VE feet
distant, stood certain heavy machinery. lhetrn
pornry removal 81 Which was necessary ~ or1,
tn preserve the wall from injury and support II
TnE SITS gave The Tribune builders permis.
sion 20 enter on It's land and u was , adinued
snrv license required 10y tho statute, unless the
removal Il The machinery HTh WIS nnr5''ssary to
ont such removal Tho SuN Association
insisted that it was the duty Of the
machinery; and that Mr. Ford the bus ness
manager Of The T'i'mnc asked Mr.. England. the
publisher Of The Sun. To- remove IL and send
the bills to him. II was removed accordingly;
the bills were sent to- Mr.. Ford. he refused To-
amount. The case was tried before Judge
Sedgwick aud n jury in December. 1876, aud
ludcmcnt for $ijNO2 was powered by tho
SUN Association against the 7ltbprr;
From this judgment the T-ibnne Association
appealed to the General Term. On the nrEu-
nicni ol the appeal il was contcndcd in behalf II
the Tribune that the nrrnsu was insufficient
without the removal OF the machinery hV TIE
SuN itself, that there was no request on the pnrt
ment should hr reversed because u part o., inc
amount recovered was for work done on sun
day. and therefore Illegal.
Tho opinion filed y"-tcrlny is written by
Judge Snniord and afhrms the judgment on
every point. He says; There was no error in
the construction OF the statui" which Judge
Sedgwick adopted. Tho ne'sssary lccnse to
enter ON the adjoining land which under the
provisions IT the statute f. to hr afforded tho
person cniising such excavations To Ice mndr.
comprehcnds and requires no action ON the
part Of the licenser. The WORT license imports
leave. permission. sufIcrnncc, authorization.
1t implies only the removal of lr.;al restraint
by II grant Of permission. The neccssnry
expressly authorizes such acts To b" done MS
may he necessary To enable the person 10 whom
1t may be- given to perform the duty which the
statute in such u contingency creates Shcr-
wood agt. seaman. Bpsw.. 1871.
Any interference with the pnntlts wall or
with lis machinery would have been tres pass
restraints which drharrcd tho defendant from
entering thu building and doing there whatever
Was necessary 90 be done, in order 20 pres rye
the wall from injury and supper; II 10y 10 proper
Ii appeared in proof that n space Of from
three To y" leet extended along between the
machinery md tho wAll. \ witness on the part
II tn" plaintiff testified that II WIS pointed ont
10 the Il defendants employees that they could
have entered and put their needles through be-
tween tho ms hines without disturbing tN"m
at all but they said they would 10 us they
pleased. and the person employed 10y the de-
PENDANTS io support aud undrrpn ~" wall.
when asked whether. in his opinion. the work
could nave boon done with the machines iuur-.
replied would not hive 'cruiet 10 take the
respDnsibRtV: no. sir. not re'V 'reM
" The fullest license. however. was accorded
to the defendant 10 do. whatever WAS deemed
necessary; no restriction was imposed. and
every courtesy and facility WIS extended.
The obleciio on Is. not that the plaintiff did
not authorize. but that II did not effect tue re-
moyal. Clearly. II the removal ot the ma
chincry WAS not matter of n"ccs~tY. hut
merely "a convenience To- tn" dcfrndanis tho
plaintiff was under no obligation either tp re-
move Il or to authorizes its removal; hut is-
Stunning the necessity 81 lis removal. am of
opinion that all that the statute required WIS
that such access To the premises should be- ai-
foried rs would enable the defendant To- do and
perform whatever was necessary for enecting
the proper preservation AMI support 81 the
wall. HNNlnE Nuru ACCESS, tlt bht} ttNnNfu
upon the defendant OF doing all thHt was access
sary. and having afforded such Access. tho
plalntfl was entitled to have all that was ncccs-
sary done.
III. therefore. the removal was effected by
the plaintiff. nj ia" request ot driendaut and
upon the express promise Ia pay for It, In" de-
PENDANT became liable for the reasonable value
of Al such work ms was necessarily performed
in oifrc,lng it,
A. 10 The alleged invnlidity Of the claim for
the work don" on sunday Judge Sanford snys:
" The proposition Of the counsel forthc Irtbiue
WIS untenahlr for the reason that labor per
formed on sunday is not ipso fa"to Illegal
TIL" statute provides that there shnll be no
s"rvlle lAhuring or working on that day eNc"lt-
ing works of necessity and charity; hut there
was evidence in this casr tending 10 show Some
necessity for doing on sunday such part Of tho
work n was done on that day.
Finally the Court holds that there was ample
evidence Of a request on the part II the repre-
sentativrs Of the li'lune Association 10 do the
work that This evidence WAS properly l"ft to the
jury. and fully justified the verdict which was
rendered. The judgment WAS affirmed with
costs.
Cornelius 4. RunSlc. for the Ti'ilunc A.soela-
ton. appellant; willard Bartlett. for the SuN
Association, respondent.