Prophet v. Katzenberger

CONREY, P. J.

By the findings of the trial court the following facts appear: On September 27, 1912, plaintiff and defendant entered into a contract in writing for the construction by the defendant of a building upon a parcel of land owned by the plaintiff. Defendant was to furnish all necessary materials and labor and to construct and complete the building in a good, skillful, and workmanlike manner, in conformity with the plans and specifications therefor. The building was constructed and paid for within the time prescribed by the contract, but it was not in all respects constructed in accordance with the terms of the contract. By the plans and specifications it was provided that the building

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should stand upon a concrete foundation placed immediately and continuously under the exterior walls of the building, said concrete foundation or footing to extend below the walls to a prescribed depth and to be of a thickness graduated so that the footing at its base should be of a thickness of twenty-four inches. Instead thereof the defendant made the foundation or footing in such manner that the thickness at the base thereof was in many places considerably and materially less than twenty-four inches. The plans provided that the defendant should install an iron drain beginning at the light-well of the building, as shown upon the plans, extending from the light-well under the cement floor of the north storeroom of the building, passing under the front wall of the building and extending to the gutter of the street in front of the building. Instead of complying with this term of the agreement the defendant installed and placed a defective drain in this, that he installed a drain in which were two holes of the approximate size respectively of two and two and one-half inches in diameter and occurring at a point in the pipe where the same lay under the cement floor of the north storeroom. The failure and neglect of defendant, as above stated, was unknown to and without the consent of the plaintiff. A little more than one year after the completion of the building, to wit, in February, 1914, there was a heavy fall of rain within the territory in which said building was located, by reason whereof a large quantity of water accumulated in and albout the building and in particular in and about the portions of the footings of the building under the north wall, the northerly portion of the front wall, and the northerly portion of the rear wall thereof; and by reason of said rain a large quantity óf water passed into the drain leading from the light-well. By reason of the defective character of the drain, the water passing into the drain escaped in large quantities through the above-mentioned holes and accumulated and stood in large quantities under the cement floor; by reason whereof the footing under the north wall and under the northerly portion of the front wall and northerly portion of the rear wall of the building gave way and settled, whereby the building was injured to the damage of the plaintiff in the sum of $927.27. At the time of said injury the north storeroom was rented at the monthly rental of thirty dollars; and by reason of the settling of the building