
    SUPREME COURT.
    St. John agt. Sweeney.
    
      Pwrty wall—what would lea proper or improper use of, not to be decided upon affidavits.
    
    Without an agreement between the owners of property, allowing them, windows have no proper place in a party wall.
    Whether the erection of fire escapes by the defendant would be an improper use of the party wall, quiere.
    
    Upon disputed' facts, and especially such an one as the existence of an agreement as to the mode of use'of a -party wall for all time, the only evidence thereof being acts of parties, the court will not decide on ex pwrte affidavits.
    
      Special Term, September, 1879.
    Motion to continue injunction.
    
      A. J. Dittenhoffer, for plaintiff.
    
      Van Derpoel, Oreen c& Gumrwmg, for defendant.
   Westbrook, J.

—Nothing in the shape of a formal discus sion of the interesting questions in this cause will be attempted, but a simple statement of points will be given.

1st. Without an agreement between the owners of property, allowing them, windows have no proper place in a party wall. This is evident from the uses and objects of party walls, with which use windows are inconsistent. No written contract allowing them to be placed in the wall between the property of the parties, and to be there continued unobstructed is shown, but the existence thereof is argued from certain acts and conduct of the owners of the property, and the court is asked, on a motion, to infer due execution of such an agreement. The drawing of such an inference previous to a trial, upon facts of at least doubtful signification, would, it seems to me, be a departure from well settled rules of equity practice.

2d. There is not sufficient proof before me to justify the holding on a motion, that the erection of fire escapes by the defendant would be an improper use of the party wall.

3d. It is better that this case go to a trial, when the facts can be ascertained and settled. If the plaintiff succeeds, the erection of the defendant can be readily removed, and, as it seems to me, her damages readily and easily ascertained.

Upon disputed facts, and especially such an one as the existence of an agreement as to the mode of use of a party wall for all time, the only evidence thereof being acts of parties, it would be unsafe to decide on &b jparte affidavits. The order to continue the injunction is denied, with costs of motion to abide event.  