and 123 New York State Reporter Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ. Feltenstein & Rosenstein (Samuel Brand, of counsel), for appellants. G. Murray Hulbert, for respondent. WOODWARD, J. The complaint in this action alleges the copartnership of August Kress & Co., the defendants, and on information and belief avers that on or about the 4th day of June, 1903, at Bayonne City, in the state of New Jersey, the defendants, under their said firm name, for value received, made their check in writing, dated on that day, and directed the same to the Bayonne Bank, and thereby required that said bank pay to one E. W. Johnson $114.96, and delivered it to said Johnson; that thereafter the said Johnson indorsed said check, and by an instrument in writing duly assigned the said check and all moneys due or to grow due thereunder to this plaintiff, and delivered said instrument of assignment and said check to this plaintiff, who is the holder and owner thereof; that the defendants stopped payment on the said check; that payment had been demanded and refused; and that there was still owing to the plaintiff the sum represented by the check. The complaint demands judgment for the amount of the check, with interest, and costs. * The answer alleges that the defendants "have no knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph or section marked 'III.'" This is the only denial contained in the answer, and relates wholly to the allegation of the complaint in reference to the assignment of the check to the plaintiff, so that the defendants have not denied that they made and delivered the check in suit for value to the plaintiff's assignor. Under the provisions of section 522 of the Code of Civil Procedure, "each material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true"; so that the fact is conclusively established that the check in suit came to the plaintiff's assignor for value. This check is a negotiable instrument. Section 20, Negotiable Instruments Law (Laws 1897, p. 722, c. 612). Every such instrument is presumed to have been issued for value, while in the present case this is admitted. Having come to plaintiff's assignor for value, and the latter having transferred the same to the plaintiff, the latter is a holder in due course. Every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument was defective the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. Section 98, p. 733, Id. In the case now before us, by the admissions of the pleadings, the plaintiff's assignor came into possession of this check for value. The instrument was complete and regular upon its face. She became the holder of it before it was overdue, and without notice that it had been previously dishonored. She took it in good faith and for value, so far as appears from the pleadings, for no fraud is alleged, and at the time it was negotiated to her she had no notice of any infirmity in the instrument or defect in the title of the person negotiating it (section 91, p. 732, Id.), which constituted her a holder in due course. Under the admissions of the pleadings that plaintiff's assignor became the holder of the check for value, there is no doubt of her right to assign the instrument to the plaintiff, and, the latter having become the owner through one who was a holder in due course, and there being no suggestion that the plaintiff had any notice of any of the transactions out of which the instrument arose, or that he had any notice of the dishonoring of the check by the defendants, he is a holder in due course, and as such he takes the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves. Section 96, p. 732, Id. It is true, of course, that the defendants set up an alleged separate and distinct defense, and as a counterclaim the transaction out of which the check originated, and there are some allegations which might, if established, tend to show that fraud had been practiced upon the defendants by the plaintiff's assignor. But the defendants having admitted, by not denying, that the plaintiff's assignor became the holder of the check in question for value, they cannot now be permitted to show, as against the plaintiff, a state of facts inconsistent with that admission. The only issue left by the pleadings was whether the plaintiff had come into the ownership of this check by an assignment from E. W. Johnson. That fact was established by the introduction of the assignment in evidence, and the questions of evidence which the defendants urge upon this appeal relate, not to the issue raised by the pleadings, but to matters relating to the alleged counterclaim, and this, as we have pointed out, was not in issue as between the parties to this action, because of the failure of the defendants to deny the material fact that the check was given for value. The motion for a new trial upon the exceptions and upon the ground of newly discovered evidence was properly denied, for the reasons which we have already suggested, and because the alleged newly discovered evidence has no relation to the only issue which was before the court. The judgment and order appealed from should be affirmed, with costs. All concur. (97 App. Div. 153.) GILLIES et al. v. ECKERSON. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) 1. ADJOINING LANDOWNERS-LATERAL SUPPORT. An owner of land is entitled to restrain an adjoining landowner from making excavations in his land tending to deprive complainant's land of lateral support in its natural state. 2. SAME CONTRIBUTING CAUSE. Where complainant's act in digging on his own land tended to deprive it of its cohesive force and contribute to its fall on its being deprived of lateral support by defendant's excavations on his land, plaintiff was not entitled to recover of defendant for the damage so caused. Appeal from Trial Term, Orange County. 11. See Adjoining Landowners, vol. 1, Cent. Dig. § 11. 89 N.Y.S.-39 and 123 New York State Reporter Action by James W. Gillies, individually, and said Gillies and others as executors of John W. Gillies, deceased, against J. Esler Eckerson, individually and as executor of the estate of James Eckerson, deceased. From a judgment in favor of defendant, plaintiffs appeal. Affirmed. Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ. Arthur S. Tompkins, for appellants. Henry Bacon and Ralph E. Prime, for respondent. HOOKER, J. The plaintiff was the owner of land south of Jefferson street, in the village of Haverstraw, and the defendant owned a considerable tract of land north of that street. The soil in this vicinity, north and south for several miles and back from the Hudson river several hundred feet, is peculiarly adapted to the making of brick, and for upwards of 25 years the plaintiff and his predecessors in title have been engaged in digging away the surface of his land to procure materials therefor. The defendant has also been engaged in the same enterprise, and in the year 1895, owing to more extensive operations, had dug deeper into his premises than the plaintiff. This action was brought to recover damages resulting from the defendant's extensive excavations, by reason of which in each of the years 1895 and 1899 large quantities of clay and sand subsided or slid from plaintiff's land upon those of the defendant. The excavations and operations still continued, and an injunction was asked to restrain the defendant from further similar use of his lands. Defendant had dug up to the center of the 50-foot strip known as "Jefferson Street," which appears to have been long since abandoned as a public highway. The complaint was dismissed upon the merits, and plaintiffs appeal. The court made this finding of fact: "The subsiding and falling and slipping away aforesaid of soil on the lands of the plaintiffs, and the subsiding, falling, and slipping away of the soil mentioned in the complaint, were caused by or contributed to by the acts and excavations by the plaintiffs and of their predecessors in title on the lands owned as aforesaid by the plaintiffs, and by the acts and excavations of the plaintiffs on said strip of land called 'Jefferson Street.'" The finding as to the contributing cause is supported by the evidence. The excavations of the plaintiff had not been such as to result in a mere depression of the whole surface of his lands. Their result was to leave the new exposure irregular in shape. Contiguous with the center of Jefferson street, to which point the defendants had brought their excavations, the plaintiff had left the surface of his ground so that its formation was wedge-like in shape, the evidence warranting the conclusion that the pyramid or wedge was some 200 feet in width and about 250 feet from apex to base. The physical condition, which resulted in the leaving of this pyramid, was that the plaintiff deprived that part of his land adjacent to his northern boundary at Jefferson street of the full measure of support by cohesion which it would have possessed had the lands been left in their original natural state, or had the excavation resulted in a practically level surface. It seems to be settled that, so far as lateral support of the soil is concerned, in its natural state, without the burden of buildings upon it the occupant of land may be protected by injunction against excavations tending to cause his land to subside or slide away. Trowbridge v. True, 52 Conn. 190, 52 Am. Rep. 579. "The natural right of support, as between the owners of contiguous lands, exists in respect of lands only, and not in respect of buildings or erections thereon. Panton v. Holland, 17 Johns. 92 [8 Am. Dec. 369]; Thurston v. Hancock, 12 Mass. 221 [7 Am. Dec. 57]; Humphrey v. Boyden, 12 Q. B. 139." Dorrity v. Rapp, 72 N. Y. 307. The doctrine laid down by Rolle that "a man who has his land next adjoining to my land cannot dig his land so near to my land that thereby my land shall fall into his pit, and for this, if an action were brought, it would lie" (2 Rol. Abr. Tres. 1), has been recognized in many cases and especially, in this jurisdiction, in Lasala v. Holbrook, 4 Paige, 169, 25 Am. Dec. 524, Hay v. The Cohoes Company, 2 N. Y. 159, 51 Am. Dec. 279, and Farrand v. Marshall, 21 Barb. 409. The reason this rule does not protect buildings erected on the confines of the land is that one who constructs them ought to foresee the probable use by his neighbor of the adjoining land, and by agreement, or the erection of his buildings elsewhere, secure himself against future interruption and inconvenience. Thurston v. Hancock, supra; Farrand v. Marshall, supra. The doctrine underlying this rule is that the burden of support attaching to surrounding land is limited to the condition of the surface in its natural state unincumbered by the weight of buildings; or, in other words, if one shall treat his own land by superimposing upon it unnatural weight, or taking away from it cohesive support, or in any other manner contribute to its insolidity, he may not maintain an action against his neighbor whose digging causes the land to slip into the pit, unless the slide would not have resulted in the absence of alterations in the natural surface of the ground. In this case the court has found that plaintiff's acts contributed to the subsiding of his ground and its being carried into the defendant's pit, and from a review of the evidence it seems quite clear to us that the cohesive force of which it was deprived by the removal of lands to the southeast might well have contributed to the result. If the plaintiff wished to retain his natural right of lateral support, he should have anticipated the consequences of defendant's digging by leaving to that portion of his land at his north line all of its own natural support from his side. The act of depriving it of its support should be followed logically by the same legal consequences as if he had erected a building close to his north line. In that event the defendant, in the absence of negligence, would not have been liable for the injury if the excavations would not have harmed the adjacent lot in its natural state. Lasala v. Holbrook, supra. The views we have expressed render it unnecessary to discuss the legal questions said to be involved by reason of the 50-foot strip, known as "Jefferson Street," intervening between the lands of the parties, and the questions of ownership therein presented by the record. The judgment should be affirmed, with costs. All concur, (97 App. Div. 1.) and 123 New York State Reporter TIERNEY v. VUNCK. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) 1. LABOR LAW-BREAKING OF SCAFFOLDING-LIABILITY OF Master. Evidence that a plank in a scaffolding, furnished therefor, had splits in it, and broke when an employé stepped on it, is sufficient to establish liability of the master, under Labor Law (Laws 1897, p. 467, c. 415) §§ 18, 19, imposing on the master the duty of furnishing safe scaffolding för the use of his servants, and providing that it shall be so constructed as to bear four times the maximum weight required to be placed on it when in use. Woodward and Jenks, JJ., dissenting. Appeal from Trial Term, Kings County. Action by Owen Tierney against William L. Vunck. From a judg ment on a verdict for plaintiff and from order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed. Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ. Hector M. Hitchings, for appellant. L. N. Wood (H. Aaron, on the brief), for respondent. HIRSCHBERG, P. J. The plaintiff has obtained a small verdict for personal injuries received from the breaking of a scaffold on which he was working in the defendant's employment on January 16, 1901. His work was to carry brick and mortar to masons who were engaged in building a chimney in the construction of a Queen Anne cottage. The chimney was nearly finished, the scaffold in question being near the top of it. The scaffold lacked one plank, and the plaintiff was directed to bring up one-he says, the only one which was left for that purpose and to place it upon the supports. He did so, and then stepped upon the plank, when it broke under him, causing him to fall some 25 or 30 feet. The plank was taken possession of by the defendant on the day of the accident, and was received in evidence and exhibited to the jury on the trial. The defendant testified that it was then in about the same condition as when it broke, except that it had aged a little, and the break did not look as fresh and bright as at first; and one of his witnesses (the one who had directed the plaintiff to use the plank) testified that he would not consider a plank which was split through in several places to be a proper, safe plank to use for scaffolding purposes, and admitted that the plank in question was so badly split at the time of the trial that you could see through it in places. Another witness for the defendant testified that he supposed the plank was split more at the time of the trial than at the time of the accident, and, while conceding that it was not as safe as it would have been if it had no splits in it, insisted that it was safe to use, and “as good as they are, as a rule." Assuming that the burden rested on the plaintiff to prove affirmatively the cause of the plank's breaking, it cannot be said that there was not sufficient evidence to justify the conclusion that the breaking in this instance was because of its obviously unsafe condition. If, as the plaintiff testified, he was directed by the person then apparently in charge of the job to bring up and place this particular plank |