New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1916-07-16
Contractors Who Keep
Structures in Streets
Long Time Liable.
DECISION RENDERED
IN SUBWAY SUIT
Sinsheimer & Son, Plaintiffs,
Awarded S., 500 Redress for
Injury Sustained.

Justice Greenbaum recently handed
down a decision which throws more
legal right on the mooted question,
what damages, if any, can property
owrers recover because of structures
built in front OF their premises by
subway contracting companies? The
decision was rendered in an action
hro"ght agains. the Underpinning and
Foundation Company by J. Sinsheimer
Son, tenants of the premises 500
loss of profits and damage to goods and
the invasion of the easements Of light,
air and access to the premises. The de-
cis'on was in their favor.
Sinsheimer e. Son said in their plea
for damages that the defendant
company was in no respects negligent
or wanting in skill or due care in the
work of constructing and maintaining
the structure in the street. They,
however, sought damages because the
structure diminished the light, air and
access TO the premises to the extent of
$4,000 in the two years and ten months
in which il was in place. The answer
Of the company was that the structure
was a temporary one, which could
under no circumstances remain in front
of the premises for longer than forty
months, the time in which the contract
was to be completed; that it was To-
Gated there by order of the Public Ser
vice Commission under valid legisla-
tive enactment and was used in the
construction Of a work Of great public
teneft. and that any injury sustained
bv the plaintiff. as the occupant OF the
shutting premises, was without redress
in law The hearing of the case lasted
four days.
Justice Grecnbapm took the position
that the structure was in law a perma-
rent one, and that the plaintiff was en-
titled to substantial damages. He di-
rected verdict for the plaintiff, leaving
II to the Jury TO assess the damages,
which awarded damages for $500.
Guided by Everett House Case.
A syllabus of this case has been
written by the Advisory Council for
the guidance of property owners who
may be similarly affected. The Ad-
visory Council says in regard to this
matter:
"The reliance Of the court in taking
this position was the case of Bates VS..
Holbrook. This case was decided by
the Court of Appeals in 1909. and arose
out of the construction of the present
subway Bates. the plaintiff in that
case. was the lessee of the Everett
House, an old-fashioned hotel. located
at Fourth Avenue and Seventeenth
Street. The defendant contractor, Hol-
brook, was engaged in constructing a
section of the work extending from
Great Jones Street 20 Thirty-third
Street. On the plaza. at the northwest
corner of Union Square and off the
route of the subway work. the con-
struction company erected large
structure on which il operated COM
pressed air plant, forge, machine
shop and storage plant. This struc-
space of about 100 feet. The work
carried on, the Court of Appeals said,
could be distributed along ten points
a. remote places or alsng the route of
the construction work. The evidence
showed that the hotel had suffered
very much. Many tenants and patrons
Of the restaurant ceased TO patronize
the hotel. Rents from the rooms de-
cined from about $4,000 to $4,000
year when the construction was in full
operation.
an the lower or trial court the case
was dismissed. the judge presiding
taking the position that while Bates,
the plaintiff, suffered injury, he could
not recover, since such injuries were
consequential in character and Incl
dental 10 the execution of the work
An appeal was taken from this decision
to the Appellate Division Of the Su-
preme Court, First Department. The
court reversed the court below by
divided bench of three to one, Justice
Ingraham adhering to the view Of the
trial court.
Appellate Court.
"The case was then taken TO the
Court of Appeals. which affirmed, by
divided court, the view expressed by
the Appellate Division, holding the con.
tractor liable for the injury sustained
by the plaintiff, Bates. The Court OF
Appeals stood five TO two upon the
question. Judge O'Brien wrote a Wig
orous opinion, in which Chief Judge
Parker concurred, in which he dis
sented from the view that the con.
tractor was liable. The majority of
the court took the position that the
structure was a permanent one, that
the use Of il for the varied activities
carried on, upon and about it, such as
the compressed air plant, forge, ma
chine plant and storage place. placed an
unusual burden on the hotel premises