Thomson-Houston Electric Co. v. Durant Land Improvement Co. (144 N.Y. 34, 1894)

Andrews, Oh. J.

The principal question of fact litigated on the trial related to the condition of the walls of the building on the demised premises. A large mass of evidence was taken of architects, "builders and other persons, and it tended to establish, by the great preponderance of proof, that the walls were unsafe, and rendered the upper stories of the building unfit for occupation for any business purpose. The building was condemned as wholly unsafe by the building department of the city of New York prior to May 1, 1888. The defendant contested the decision, and issues were tried before a jury, under the provisions of chap. 410 of the Consolidation Act of 1882, as amended by chap. 566 of the Laws of 1887, and the jury, on the 7th day of May, 1888, found that the building was unsafe in its then condition, and that buttresses should be built to support the east wall, and that the front wall on 24th street should be taken down above the first story, with the exception of the two end piers. The referee, however, refused to make any finding or adjudication upon the question of the soundness or unsoundness, safety or unsafety of the walls of the building, for the reason assigned in his report, viz.: “ That an adjudication on this question was immaterial, because of the fact that the plaintiff has used and occupied the building for its business, and has had an undisturbed right to the beneficial use of the remaining part of the building (i.