
    George L. Kingsland et al., Resp’ts, v. Clarence Tucker et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    
      1. PASTY WALL— COHSTBUCTIOH COT AGBBEMBHT — LATEBAL SUPPOBT.
    Where adjacent owners agree that one may use the wall of the other as a party wall, by paying one-half of its value, and, finding the wall not plumb and not fit to tie or anchor to, the subsequent builder erects an independent wall which in some places touches the party wall and in others is several inches from it, he does not use the party wall, within the meaning of the contract, even though the contact materially added to the strength, stability and safety of his wall.
    
      2. Same — Latebal suppobt.
    The incidental lateral support which may be given by a party wall to a perfectly independent wall, which only touches it at different and distinct places, and which is sufficient in and- of itself to stand all the demands which may be made upon it for years to come, is not such a use as was contemplated by the agreement.
    Appeal from judgment of general term, supreme court, first department, reversing j udgment for defendant, entered on report of referee. Action upon covenant in party wall agreement.
    
      Sidney S. Harris, for app’lts; Fred. De P. Foster, for resp’ts.
    
      
       Reversing 8 N. Y. State Rep., 460.
    
   Peckham, J.

The referee found that, when the defendants erected their building, the party wall in question was examined by the builder employed by them, and was found to be out of plumb several inches in some places and to have settled considerably, and not to be in a proper or fit condition to use in the erection of defendants’ building, and that it was not in a fit or proper condition to use as an easterly wall to .the defendants’ building which they erected at that time. The referee also found that the defendants did not anchor or tie into the party wall, but that they erected an independent wall twelve inches in width which they used except where in certain places the party wall projected beyond the width of eight inches on defendants’ lot, in which case the defendants built around such projection, and at such places their wall was eight instead of twelve inches in width. The referee further found that the wall of defendants touches the party wall in some places, .and in other places it is several inches away from the party wall, arising from the party wall not being plumb.

The plaintiffs claim that such an use was made of the party wall as was contemplated under the contract, and they base their, claim upon the fact that by reason of its presence the defendants were enabled to build their wall of a less width than the bureau of inspection of buildings would otherwise have permitted, and hence they say that the party wall was made use of by the defendants.

The referee and the general term differ as to the construction which should be given to the language of the agreement, the former holding that the defendants made no use of the party wall within the true meaning of the contract, while the general term was of the opinion that the facts made out such an use of the wall by the defendants as was within its terms. This opinion was based upon the assumption that the evidence showed that "the lateral support which the new wall received from the party wall, at the various points and places where the two structures came into contact, contributed materially to the strength, stability and safety of the wall of defendants, and hence that they did make use of the party wall within the meaning of that phrase, as employed in the contract.

1 think the evidence fully sustains the finding of the referee, that the party wall was out of plumb, that it was not fit to tie or anchor to, and that it was not tied or anchored to by defendants, and that they erected an independent wall which, in some places, touched the party wall and in other places it was several inches away, because the party wall was that much out of plumb.

Under these circumstances we cannot agree that the defendants made use of the party wall within the meaning of the contract, even though the contact of the party wall with the independent wall erected by the defendants, at the various points and places where the two structures came into contact, materially added to the strength, stability and safety of defendants’ wall.

There is really no question but that the independent wall built by the defendants, as shown by the evidence, was sufficient in strength to stand alone and to fill all the requirements of a wall for many years to come, and it is equally true that such a wall of but twelve inches in width is not permitted by the laws existing in Yew York city.

I do not see that this fact has any bearing upon the question of the nature of the use which was made of the party wall by the defendants or whether such use was within the terms of the contract. We think it plain that the use which is spoken of in the contract is the ordinary use to which a party wall is put, viz., that of resting the timbers of the house upon or in it, and also the roof, or of “anchoring” or “tieing” to it in such a way as is commonly and ordinarily done in "building on a party wall. The incidental lateral support which may be given by a party wall to a perfectly independent wall, which only touches it at different and distinct places, and Where the independent wall is sufficient in and of itself to stand all the demands which may be made upon it for years to come, is not such an use of the party wall as is ordinarily made, and we think clearly not within the terms of the contract in question.

We think the very wording of the agreement clearly calls for the use of the party wall for the support of the beams of the defendants’ building. They are by the terms of the contract permitted to use it for such purpose for the building then (at the time of the making of the agreement) standing on their lot, but whenever they make use of the same for the erection of a new building to be constructed on such lot, they are to pay for the one-half value of the wall The use of the party wall which is contemplated, to be paid for when the erection of any new building is spoken of in the agreement, is the same kind of use which is made of the party wall gratuitously as to the building then standing on the lot, viz., an use for the support of the beams of any" new building, or at least for anchoring or tieing to such wall. Nothing of the kind has been done in this case, and we think the general term erred in reversing the judgment for defendants.

The order of the general term should be reversed and the judgment entered upon the report of the referee should be affirmed, with costs to the defendants.

All concur.  