
    Hendricks et al., Executors, v. Stark.
    
    Party-wall.—Incumbrance.
    The right of an adjoining proprietor to use a party-wall, is not a legal incumbranee; a purchaser at public auction cannot refuse to complete Ms purchase on such ground.
    
    Appeal from the general term of the 'Supreme Court, in the first district, where a judgment rendered in favor of the plaintiffs, in a case tried before the court, without a jury, had’been affirmed.
    This was an equitable action by Montague M. Hendricks and others, executors of Henry Hendricks, deceased, against Philip Stark, for the specific performance of a contract to purchase the premises, known as the Collins House, in the city of New York, for the sum of $96,000. The defence was that two of the walls of the building were party-walls.
    The case was tried before Barnard, J., without a jury, who found the following state of facts:
    1. On the 18th of June 1839, Lispenard Stewart and Robert Stewart owned a lot on the corner of West and Hoboken streets, being eighty feet on West street, and eighty-eight feet on Hoboken, and also owned the adjacent lots on the east and south.
    2. They entered into a contract with John G. Rohr, by which he undertook to erect three or more four-story brick stores, to occupy the entire front of the corner lot, on both streets; the southerly and easterly walls to be party-walls, half on the corner lot, and half on the premises adjacent; in consideration of which the Stew-arts were to convey to him a part of the property.
    3. Rohr sold the southerly forty feet of the lot on West street to George' I. Nelson, who verbally agreed to erect the buildings on that part of the premises called for by the contract with the Stewarts; Rohr agreeing to build between his *lot and Nelson’s, a party-wall, standing half on the land of each, Nelson paying half the expense.
    4. Rohr proceeded to erect the stores on the portion of the premises he retained, the easterly and southerly walls being party-walls, standing half on his own and half on the adjacent lots.
    5. On the 9th'of October 1840, the Stewarts executed the conveyance to Rohr of the premises in question, being eighty feet on Hoboken, forty-four feet on West street, and of corresponding dimensions in the rear; and the deed provide^ that the owner of the lot adjoining the easterly house on Hoboken street, should be entitled to use and build upon one moiety of the party-wall, or so much of it as he might require, on paying to Rohr the appraised value of such portion of it as he should use; after which, it should be and remain a party-wall between such houses, belonging equally and in common to both.
    6. In 1851, Rohr converted the buildings into a hotel, by adding another -story and changing the internal arrangements, and the property is now known as the Collins’ Hotel.
    7. In 1854, the premises were conveyed by Rohr and wife to the testator, Hendricks, and they were described in the deed as eighty feet on Hoboken and forty-four feet on West street, but no mention was made of any agreement in regard to party-walls.
    8. The testator died in September 1861, leaving a will, in which he appointed the plaintiffs his executors and trustees, with authority to sell all his real estate, at public auction, or otherwise, and to execute conveyances therefor; and the will was duly proved, and letters testamentary issued to the plaintiffs.
    9. The premises were accordingly advertised for sale in February 1866, the following being the description in the auctioneer’s notice: “ West street, south-east corner of Hoboken street, ‘Collins’ Hotel,’ opposite Albany steamboat landing, 44X80 feet.” The conditions of sale provided for payment of half the purchase-money by instalments, and the execution of a conveyance *and a bond and mortgage for the balance of ° ° the price, to be delivered at the office of Messrs. Cambreling & Pyne, on the 25th of April ■ following. The following clause was also inserted in the conditions of sale: “ The dimensions of all the property is more or less. The usual executors’ deed will be given.”
    10. The defendant purchased at the auction sale for $96,000, and he signed the following memorandum at the foot of the conditions of sale:
    -‘ I have, this thirteenth day of February 1866, purchased the premises on the south-east corner of West and Hoboken streets for the sum of ninety-six thousand dollars, and hereby promise and agree to comply with the terms and conditions of the sale of said premises as above mentioned and set forth, said premises being known as Collins’ Hotel. Philip Stark.”
    The defendant, on that and the day following, paid ten per cent, upon the purchase.
    11. The premises known as Collins’ Hotel” are the same formerly owned by Rohr. The walls on the east and south' are party-walls, and have been used as such for twenty-seven years. They were intended to be built so that the centre of each wall should be on the boundary line; but the centre line of the southerly wall is, in fact, an inch south of a line parallel with Hoboken street, and forty-four feet southerly therefrom. At the time of the purchase, subscription and payment of the ten per cent., the defendant had no knowledge that the walls were party-walls.
    12. The defendant subsequently elected and agreed, pursuant to the conditions of sale, to give a bond and mortgage for half the purchase-money. The plaintiffs, at his request, prepared them, and affixed the stamps, of the value of $58, and he executed them, but did not deliver them to the plaintiffs.
    13. The sum of $19,200, being twenty per cent, on the purchase, which became due on the 21st March 1866, has never been paid.
    ^ie prior to the 25th of April 1866, prepared a conveyance of the premises, affixed the necessary stamps, of the value of $96, and submitted it to the defendant for inspection, and the deed was approved bj^ him as to form.
    15. On the 25th of April, they tendered the deed to the defendant, in conformity with the terms of sale, but he refused to receive it, and has neither paid the balance of the price, nor delivered the bond and mortgage.
    16. The damages, by way of expenditures, sustained by the plaintiffs, by reason of the defendant’s refusal to perform, have been settled by the parties at $1199.60.
    Upon this state of facts, the learned judge found as conclusions of law:
    1. That the party-walls did not constitute such an easement or incumbrance on the premises, or defect in the title thereof, as should relieve the defendant from his contract, or entitle him to compensation.
    2. That the dimensions of the premises having been expressly stated, in the terms of sale, as more or less, the existence of the party-walls does not constitute such a variance in the dimensions of the premises agreed to be sold, as to relieve him from the purchase, or entitle him to compensation.
    
      And he directed the entry of judgment in favor of the plaintiffs, which having been affirmed at general term, the defendant took this appeal.
    Peckham, for the appellant.
    
      Evarts, for the respondents.
    
      
       Also reported in 4 Trans. App. 146.
    
    
      
       Waterman v. Van Every, 3 Alb. L. J. 304.
    
   Porter, J.

Upon the facts found by the judge, the plaintiffs are clearly entitled to the relief demanded in the complaint and awarded in the court below. As trustees under the testator’s will, they were the proprietors of the premises known as the “ Collins’ Hotel.” These premises extended, in fact as well as in law, to the central lines of the respective party-walls, which substantially corresponded with the specified dimensions of the lot, and with its eastern and southern boundaries. (Eno v. Del Vecchio, 4 Duer 61; Sherred v. * Cisco, 1 Sandf. 480; Thompson v. Somerville, 16 Barb. 473; Partridge v. Gilbert, 15 N. Y. 614.) There was no assertion of title beyond these lines, either in the notice of sale, or in the contract signed by the defendant.

The practice of economizing space in populous cities, by the erection of buildings with party-walls, is one so ancient that it would be difficult to trace its origin. The law applicable to this subject has been for centuries well settled in England, and the prevalence of a like usage in our larger towns, has made the rules which govern it equally familiar here.

There was nothing in the description of the premises in question as the “Collins’ Hotel” which imported, ex vi termini, that the walls were of this, or of a different character. The failure of the defendant to inform himself on a subject, as to which the notice of sale was silent, indicates his indifference as to the particular character of the walls, and shows that he was content to buy, without being at the trouble of examination or inquiry. This omission may be evidence of his own indiscretion and incaution, but it cannot be imputed as a wrong to the plaintiffs, who neither said or did anything to mislead him. The auctioneer was not authorized to dispose of the whole or any portion of the structures on the adjacent premises, and the defendant cannot justly complain, that the plaintiffs were not the owners of that which they did not assume to sell, and which was not included in his purchase.

As the title acquired by the defendant extended only to the middle of the eastern and southern party-walls, it is obvious, that the mutual easement for their support was a benefit, and not a burden, to him as well as the adjacent proprietors. It was a valuable appurtenance, which passed with the title of the property, and its value to him was not diminished by the fact that it was equally beneficial to the adjacent owners. (Eno v. Del Vecchio, 4 Duer 53.) It is manifest, that the Collins’ Hotel would be materially diminished in value, if these walls were to be so pared down as to deprive them of Presen^ support. Their thickness does *n'ot appear, but it is fair to assume, that the builder availed himself of the advantage of this mode of construction, by adding as much to the interior area of the structure as was consistent with its entire security.

It is true, that the erection of a party-wall creates a community of interest between neighboring proprietors, but there is no just sense in which the reciprocal easement for its preservation can be deemed a legal incumbrance upon the property. The benefit thus secured to each is not converted into a burden, by the mere fact that it is mutual and not exclusive. (Partridge v. Gilbert, 15 N. Y. 601.)

Even if this were otherwise, there would still be nothing in the present ease to justify the court in refusing a decree in favor of the plaintiffs. There was no failure of any substantial inducement to the contract. The defendant acquired what he proposed to buy; and he was so well satisfied with the purchase, that, after full opportunity of examination, he appfoved the form of the proposed conveyance, and executed a bond and mortgage for the balance of the price. Even when he concluded not to fulfil his contract, he did not suggest the objection on which he now rests his defence. The plaintiffs tendered substantial performance of their agreement; and if the defendant really deemed it desirable to fill up part of the interior of the building with an additional thickness of wall, standing wholly on his own ground, an appropriate allowance could have been made by way of compensation. But he made no such claim; and there is no finding, as matter of fact, that the value of the premises is in any degree diminished by the reciprocal easement of which he complains. In such a case, a denial of specific performance would be in contravention of the plainest rules of equity. (Winne v. Reynolds, 6 Paige 407; King v. Bardeau, 6 Johns. Ch. 37; Ten Broeck v. Livingston, 1 Id. 357.) The judgment should be affirmed.

Judgment affirmed.  