
    William Fettretch, Plaintiff and Respondent, v. Jeremiah Leamy, Defendant and Appellant.
    1. Under a covenant,, in. an executory contract, for the sale of a lot of land, by the vendor, to erect upon an adjoining lot, along the boundary line between the two lots, a wall, and to grant and' convey to the purchaser the right to use such wall irr the erection of a house on the lot so agreed to be sold to him, and “for that purpose to insert the beams thereof into such wall, to the extent .of four inches,” and two chimney backs to the like extent, and “ to keep and maintain such beams and chimney backs therein, so long as such wall should stand,” such wall “ to be a party wall between the two houses to be built” on such two lots, the contract containing also, in terms, a present grant of such easement in such wall to be built: Held, that the' purchaser did not acquire thereby a right to use such wall in. any other way than that so specified; and that he was not entitled to prolong the lintel course of his front wall, across the boundary line of such two lots, so as to enter into the front wall of the vendor’s building at the pointer line where those walls, meeting, adjoined the party wall.
    2. If the vendor erects on such adjoining lot a wall along such boundary line, more extensive than by the terms of such agreement, he is bound to do, although he refuses, to allow the purchaser to use it as a party wall, pursuant to such terms, no increased stability or value which a building, erected by the latter on the lot so bought Joy him, would have derived from such use, if permitted, or increased expense of making such building equally stable and secure by other means, arising from not being allowed so to use it, form proper elements in estimating the damages' of the purchaser, by such refusal, and it is error to admit evidence thereof, as such. (Per Robertson, J.)
    3. The term “party wall,” when used in such an instrument, without restrictive terms, .and in its general ordinary signification, means a dividing wall between two houses, to be used equally for all the purposes of an exterior wall, by both “parties,” that is, by the respective owners of both houses. This use, in its full, unrestricted sense, embraces not only the use of the interior face or side of the wall,, but also- such use of it as is necessary to form a complete and perfect junction in an ordinary good mechanical manner, between it and the other exterior walls of the house. (Per White, J.)
    (Before Robertson, White and Babbour, J. J.)
    Submitted June 16) 1862;
    decided October 11, 1862.
    This action was brought to recover damages against the defendant for interfering with the use by the plaintiff of a wall standing upon the land of the former, adjoining the land of the latter.
    In the year 1860, the defendant owned in fee three lots of land 100 feet deep, adjoining each other, situate at the corner formed by the intersection of the southerly side of Fifty-fifth street and easterly side of Third avenue, in the City of Hew York; two of the lots being 25 feet wide, and the remaining corner one five inches wider. In that year, on the 27th of September, the parties to this action entered into an agreement under seal inter partes, wherein the ownership by the defendant of such lots, as laid down on a diagram annexed and numbered 1, 2 and 3, was recited. By it the defendant, in consideration of the plaintiff’s covenant therein contained, agreed to convey to him for a certain price, to be paid partly in cash, partly on the delivery of the deed, and partly by mortgage, the lot" designated on such diagram as Eo. 3; and also immediately to erect a wall on the south side of lot Eo. 2, so as to adjoin the northerly side of the lot so sold to the plaintiff; such wall to be 50 feet deep eastwardly from the easterly side of the Third avenue, and to be “ four “ stories high .above the sidewalk; that is, high enough “for a four story house.” The defendant also,,by such agreement, covenanted that he should grant and convey, and he did thereby grant and convey to the plaintiff, the right “to use such wall in the erection of a house” on the lot so agreed to be sold to him, and “ for that purpose “ to insert the beams thereof into such wall to the extent “ of four inches,” and two chimney backs to the like extent, and “to keep and maintain such beams and chimney backs “ therein, so long as such wall should standsuch wall “to be a party wall between the two houses to be built” on such two lots Eos. 2 and 3. The defendant further thereby covenanted not to pull down such wall, or do any act tending to its destruction. He also thereby agreed to deliver, on the 27th of October following’, to the plaintiff, a full warranty deed of lot Eo. 3 so sold, free from all incumbrances except the mortgage, upon receiving a certain sum, and to pay the plaintiff any damages he might sustain in building before that time, and the expenses of searching the title, in case it should prove defective. It was also declared therein that these covenants should run with the land and bind the parties, their heirs and assigns.
    The defendant and his wife, on the 27th of October, 1860, delivered to the plaintiff a deed, executed by them, of lot Eo. 3, in which it was declared that it was made pursuant to the agreement of September previous; and that “ all the covenants a.nd agreements therein contained “ relating to the party wall therein mentioned and the right “ to use the same, and all other covenants not necessarily “ satisfied by such deed and the payment of the purchase-“money,” were “to continue and be obligatory upon “the respective parties thereto according to the tenor “ thereof."
    The complaint in this action, after setting forth the making and contents of the agreement of September, 1860, alleged the performance by the plaintiff of all his covenants therein, and the execution'» to him on the 27th of October, 1860, by the defendant, of a deed of the lot in question, wherein the latter did for good consideration agree, that such “ wall should remain forever a party wall “ between the plaintiff’s and defendant’s lots, and that the “ former could use it in the erection of the building on his “ lot, as fully and to the same extent as if it were a part “of and erected at the same time as the walls" of such building. It then averred, that on the 29th of September the plaintiff commenced a four story building on his lot, and completed it in March, 1861; and that in the course of such erection the defendant “wholly prevented the “ plaintiff from using such wall as a party wall, for the “ erection of the front wall of such building, and hindered' “ the plaintiff from joining any portion of such front wall “ with or upon the front portion of such party wall" as it was necessary, for the safety and permanence of such building, for the plaintiff to do; and further, that by reason of such acts of the defendant, the- plaintiff was compelled, at great inconvenience and expense, as well as loss of time in the completion of his building, to lay other and separate foundations, and erect thereon other separate supports, by which to sustain the northerly end of the front wall of his building; and although such work was done in the best possible manner to make such building secure, yet by reason of such front wall being separated from such party wall, it was less secure, permanent and strong than it would otherwise have been -; also, that, in consequence of the necessary occupation of the basement doorway by such foundation and support, it was rendered inconveniently narrower than it otherwise would have been, whereby the value of such building and property was diminished;' and the plaintiff claimed such damage to amount to $1,000.
    The answer of the defendant admitted the agreement of September, but took issue in the existence of any such covenants in the deed, by him, to the plaintiff; also, upon the allegations of the complaint, as to Ms hindrance of the plaintiff from using the wall as a party wall, or from using any portion of the front, wall of his building with the front of such party wall; also, upon the necessity, in consequence of any act of his, of laying foundations and erecting supports, to sustain the northerly end of such front wall; also, upon the inferior security or permanency of the front wall of the plaintiff’s building, by reason of its separation from the party wall; also, upon the narrowing of the doorway, by the foundations and supports, and generally, any diminution in value of the plaintiff’s building.
    The action was referred to Orsamus Bushnell, Esq., as ' Referee, to determine the issues therein. He reported in favor of the plaintiff, and found, as matters of fact,
    . 1st. The" mating of the contract to sell the lot in question, as stated in the complaint.
    2d. A conveyance of such lot to the plaintiff by the defendant, by a deed, but only with such provision as to the continuance of covenants, as is herein above stated.
    3d. The erection of a four story building by the plaintiff, on the lot so conveyed to him, and the obstruction by the defendant, of-the plaintiff, “in the way of his using the “ front of the party wall, built by him as a party wall, for “ the erection of the front wall of the plaintiff, and Ms “ refusal and hindrance of the latter from joining any por- “ tion of the front wall of Ms building within or upon the “ front of such party wall.”
    4th. A usage, and, for the safety and permanence of such a building as the plaintiff’s, a necessity, to exercise the rights of using the front of such a party wall, by tying therein.
    5th. A compulsion on the. plaintiff, by reason of such hindrance by the defendant, to erect, and his erection, of other and separate foundations and supports for his Mont wall,on which to sustain the northerly end of such Mont wall, at considerable expense, inconvenience and loss of time.
    6th. Notwithstanding the proper erection of such foundations and supports, inferior security, permanence and strength of the plaintiff’s building, by reason of his not being permitted to rest it, and actually resting it, on the Mont of such party wall, the narrowing and inconvenience of the entrance doorway to the basement thereby, and the inferior value of the building to what it would have been if the plaintiff had been permitted “ to use the front of “ such party wall, by resting the Mont of his wall upon it, “in the usual way.”0
    7th. Damage to the plaintiff, by such acts of the defendant, to the amount of $1,000.
    The conclusions of law of the Referee were :
    I. That the defendant is chargeable with the breach of the contract so made by him, in refusing and preventing the use of the Mont of such party wall, by the plaintiff.
    II. That the defendant owes the plaintiff one thousand dollars, as damages for such breach, with interest, Mom the date of such report.
    The defendant excepted to the third, fourth, fifth and sixth findings of fact in the report of the Referee, by written exceptions, duly filed.
    On the trial it appeared that the plaintiff commenced building on his lot the day after the contract. The defendant had previously begun to build on his, and had completed the side and front walls so far as to have finished a brown stone lintel on the.first floor of the latter, extending to the line of the plaintiff’s lot; the plaintiff then undertook to cut off four inches in length, of such lintel, in order to have the lintel of Ms Mont wall extend that distance beyond the dividing line of the lots, and lap over that part of the defendant’s building which belonged, in common, to its front and side wall; the defendant resisted the attempt, and the plaintiff abandoned it. Evidence was also given to show that the defendant verbally forbade the plaintiff’s putting in anchors in his front walls, and interlocking the bricks of the front walls of both buildings, at their junction; but never otherwise prevented him from doing so. The evidence was contradictory as to the fact of insertion of anchors and tying the front walls of both buildings together, by interlocking the bricks.
    Ho evidence was given as to the meaning of the term. “party wall” as used by builders, or owners of, or dealers in real estate, or to show that it had acquired any' technical signification beyond its ordinary one. Evidence was, however, introduced, of the practice of builders, in connecting front walls of adjoining houses, when the dividing wall was a party wall; but it was conflicting as to the usage, when such party wall stood entirely on one person’s land, and the other had a mere easement in it, or privilege of using it. Evidence was also given to show the superiority in firmness, appearance and convenience of the mode of uniting the walls, attempted» by the plaintiff and opposed by the defendant. The plaintiff testified as to the impossibility of making his building secure, without being aided by the support of the wall, intended as a party wall. Upon that point the testimony was conflicting.
    A number of witnesses, builders, dealers in real estate, and persons conversant with party walls, were examined as to the custom, under an agreement, such as that of September, 1860, in all its parts, after reading or stating them to such witnesses, of resting a part of the lintel course of the building of the party having the privileges therein granted, upon the adjoining wall,by cutting a place therein. They differed widely in their views of the custom, generally admitting, however, that they had never seen a similar agreement; and many were more influenced in their testimony by the grant of the privilege of inserting beams four inches, than by the wall being described as a party wall. Two of the plaintiff’s witnesses, (Haldrich and Duffy,) testified that they did not consider it as a full party wall agreement, but simply as one to use four inches of the party wall.
    Evidence was both admitted and excluded as to the negotiations between the parties before the execution of the agreement of September, 1860, to which exceptions were taken. Evidence was also given to show the inferiority of the plaintiff’s building, by reason of Ms not having been allowed to insert the lintel course of Ms front wall in the front part of the defendant’s front wall, and consequent damage to its value. Questions were twice put to the defendant as to preventing the plaintiff from connecting the two front walls, which were excluded; but upon what -ground does not appear. A question as to the cost of connecting the walls, at the time of the trial, was excluded, and exception taken thereto.
    
      W. R. Stafford, for defendant, appellant.
    I. The agreement of the defendant was, not to build a party wall, but that the wall when erected should then remain a party wall.
    He built the wall, and would have been liable to an action for non-performance, if he had not extended it to the front line of his lot. Until so erected, the plaintiff had no right to touch it, except to insert beams and chimney-backs, as specifically reserved by the agreement; and any other interference by him, however careful, would have been a trespass. (Eno v. Del Vecchio, 6 Duer, 17.)
    II. The evident intent of the parties at the time the agreement was made, was so to restrict the immediate use of the wall. In construing a'covenant, it must be considered with the context, and performed according to the intention of the parties as derived from both. (Marvin v. Stone, 2 Cow., 781; Bull v. Follett, 5 Id., 170; Roberts v. Roberts, 22 Wend., 140.)
    The situation of all parties and the subject matter are to be considered. (Wilson v. Troup, 2 Cow., 195.)
    III. The plaintiff cannot claim the benefit of any forced construction of the agreement in his favor. It cannot be enlarged by parol testimony, and the evidence tending so to do was clearly erroneous.
    The right claimed by plaintiff to enter upon the defendant’s front wall, and occupy it for a permanent purpose and for an indefinite time, cannot be created otherwise than by a conveyance sufficiently explicit to carry a freehold. (Brown v. Woodworth, 5 Barb., 551; Houghtaling v. Houghtaling, 5 Id., 379; Mumford v. Whitney, 15 Wend., 380; 6 Hill, 61; 4 Johns., 81.)
    IV. The agreement, in the first instance, merely conferred a license to use for specific purposes. The easement could not take effect until the houses were finished. (Giles v. Dugro, 1 Duer, 331-333.)
    V. The plaintiff was in no way prevented from connecting his front with the wall, except by the refusal of defendant to allow him to cut off four inches of the lintel in question, and carry plaintiff’s lintel across; and the front was in fact properly tied to the side wall,- although the defendant did not covenant to support the front. There was, therefore, no such breach of the agreement as to authorize an action against the defendant. (Palmer v. Fort Plain, &c., Co., 1 Kern., 381-388; 25 Wend., 367, 368; 1 Denio, 513.)
    VI. There was no evidence upon which to base any claim for the damages awarded by the Referee. The true rule would have been, what it would have cost to place the parties in the same position as required by plaintiff’s version of the contract, but that was excluded by the Referee.
    VII. The plaintiff could not justify the proposed trespass by him by evidence of custom. (4 Duer, 61.)
    VIII. Having allowed plaintiff to go into proof as to .-custom, the Referee erred in not permitting defendant to contradict it by similar evidence.
    IX. The testimony wholly failed to establish any definite custom on the subject.
    X. The Referee erred in many of the minor questions arising on the trial; and to such an extent as to clearly entitle the defendant to a new trial.
    XI. The defendant’s motion to dismiss the complaint should have been granted, for the reasons assigned; and as it is submitted that the plaintiff has, on the entire evidence, failed to make out any cause of action, the judgment should be reversed and judgment of nonsuit ordered.
    
      T. B. Barnaby, for plaintiff, respondent.
    I. The pleadings substantially admit the plaintiff’s right, under the agreement, to use the front portion of the party wall, as well as the interior portions of it for the purposes and uses of a party wall.
    This wall so to be built, beginning at the avenue line and running back 50 feet, just the depth of both houses, is necessarily a party wall to the outside front and rear line; whereas the defendant mistakenly supposes, by his theory, that the party wall stops on the inside of the front and rear walls.
    II. The Beferee has found in favor of the plaintiff, upon all the facts necessary for the recovery of the damages, as reported by him.
    III. The defendant’s exceptions to the Beferee’s report are too general, being to the whole and not to any specified part. (Willard v. Warren, 17 Wend., 257; Whiteside v. Jackson, 1 Wend., 418.)
    IV. The Beferee’s conclusions of law are correct, as stated in his report. 1st. The plaintiff had a right to the use of the front portion of the party wall, to the depth at least of four inches, so as to rest his front wall upon it in the manner usual in erecting buildings, (a.) The natural meaning of the first part of this covenant is not narrowed down or restricted by the clause as to beams and chimney backs. The copulative conjunction forbids that view. If restricted at all, the restriction is confined to the question of how deep the beams and chimney backs may be inserted.
    The last clause is general: “ The said wall to be a party wall.” It applies to the whole extent of the wall, fifty feet deep from front to rear, and this necessarily includes the part to which plaintiff’s front should have been attached. It is meaningless Unless the wall is to be a party wall in the broadest sense.
    The entire scope and evident intent of the whole agreement, together with the deed, give the same construction.
    Whatever may be fairly implied from the terms or language of the instrument, is in judgment of law contained in the instrument. (Rogers v. Kneeland, 10 Wend., 218. As to the rules of construction,- see Wilson v. Troup, 2 Cowen, 195 ; Bull v. Follett, 5 Cowen, 170; Potter v. Bacon, 2 Wend., 583; Willard v. Tillman, 2 Hill, 274.)
    By this agreement and deed the plaintiff acquired more than a mere license to insert beams and chimney backs; he acquired an easement in the wall as long as it shall stand, founded in positive grant, and assignable. (Webster v. Stevens, 5 Duer, 553; 3 Kent, 452; Miller v. Platt, 5 Duer, 277; 4 Id., 53.)
    When there is Any doubt what construction to give to the language of a contract, the words and covenants are to be construed most strongly against the grantor. (3 Comst., 256; 3 Johns., 387.)
    
      (b.)' The very necessities of the case, and the safety, convenience, comfort and beauty of a building require this construction, or otherwise the plaintiff must have foolishly agreed to have no wall against which his front should be secured.
    (c.) The building or fire law, which is presumed to have been in the contemplation of the parties, necessarily presupposes that in every building the front wall and side wall shall lap over each other, making a sharp corner, and requires in addition that the front be secured to the party wall, either by building or interlocking the brick work together, or by tying iron anchors'across the full width of the party wall into the middlé portion of the front wall, and these anchors not to be more than six feet apart. (Laws of 1860, 905, ch. 470.)
    
      (d.) The prevailing custom, as proved and found by the Referee, admits of- no other mode of erecting a front wall.
    (e.) The acts of the defendant, permitting the rear wall of plaintiff’s house to be built into the party wall, are consistent only with this construction. If the rear, why not the front also? (French v. Carhart, 1 Comst., 96; Giles v. Comstock, 4 Id., 270.)
    2. This being so, the Referee finds, as matter of law, that rightly defendant is chargeable with the breach alleged. (Voorhies. v. Anthon,.5 Duer, 182.)
    3. His finding, as to damages, was correct. (Derwint v. Wiltsie, 9 Wend., 325; Freeman v. Clute, 3 Barb., 426; Griffin v. Colver, 16 N. Y. R., 489; Sedg. on Dam., 71, 98, 112; Kane v. Sanger, 14 Johns., 89; Giles v. O’Toole, 4 Barb., 261.)
    Where, as in this case, the defendant has maliciously or wantonly violated his contract, or has done so under aggravated circumstances, the damages may be increased. (Sedg. on Dam., 35.)
    The Court will exercise the power of awarding a new trial very cautiously when the error relates only to the amount of damages. (Krom v. Schoonmaker, 3 Barb. S. C. R., 647.)
    V. The Court will not presume error in law or fact, not apparent on the report. (Rule 13 of the Superior Court.)
    VI. The Referee has not erred in ruling upon the admission of testimony.
   Robertson, J.

If the case stated in the complaint had been made out in evidence, the plaintiff would have established a complete cause of action; but the deed to the plaintiff, on being produced, is found to contain no such covenant as is stated in that pleading. It simply reserved whatever rights had been acquired under the covenants contained in the instrument of September previous, relating to the party wall therein mentioned, and the right to use the same, and continues their obligatory force. 'From that September instrument alone, th<| plaintiff derives his right to sue. The action is framed upon a supposed breach of some covenant, and the Referee has reported as matter of law that the defendant is chargeable with the breach of the contract so made by him, in preventing the use of his front wall by the plaintiff, and that the damages from such breach amount to one thousand dollars. This renders it necessary to examine what such covenants are: In the first place, there is no such covenant in the September agreement as to permit the plaintiff to use the party wall at all; there is one, to grant an easement in the premises on which it was to stand and render them the servient tenement, while the plaintiff’s lot was to be the dominant one. It was an executory contract to convey a right, not a mere covenant that such right might be exercised. Until that covenant was specifically performed, no right arose to use any part of the wall. It is true such instrument purported actually to grant such right, but the plaintiff had not then acquired the title to the land to which it was to become appurtenant. (Gale & W. Law of Easement, 5; Wolfe v. Frost, 4 Sandf. Oh., 72.) An instrument in the form of a covenant has been held to be a grant, (Barrow v. Richard, 8 Paige, 351; Birdsall v. Tiemann, 12 How. Pr. R., 551; Keteltas v. Penfold, 4 E. D. Smith, 122;) but I am not aware of any decision holding the converse. The agreement for the grant of the easement was substantially a part of the contract for the conveyance of the land, and should have been performed along with it. The easement would thus have been created, (Webster v. Stevens, 5 Duer, 553; Miller v. Platt, Id., 277;) and the plaintiff’s action could only have been for a disturbance of a vested right, not for violating a covenant. ■ Possibly, however, the plaintiff may have a right to unite an action for specific performance with one for injury done to the rights which would have been his, if the contract had been performed originally, on the principle that equity will consider as done what ought to have been done. This action might, therefore, be maintainable on proper pleadings, which renders it necessary to examine the evidence and findings in this case.

Two things are observable as apparent on the face of the instrument of September, 1860; one is entire silence respecting the materials, structure or dimensions of the wall to be erected by the defendant, according to its terms, except its length and height, and, perhaps, four inches of thickness. Another is, that the easement was to be confined to that wall when erected, and cease with its existence. Had the defendant not built any wall, it would have been difficult to estimate what damages, under a contract so vague, the plaintiff would have sustained. Can he now recover damages to be measured by the character of the wall the defendant has actually put up, when he might have preferred not to have used such a wall as the defendant might have erected so as to be within the terms of the contract? Suppose the defendant had put up a wall twice the thickness of the present one, could the plaintiff have recovered damages commensurate with the increased stability which a connection of his front wall with such a wall would have given to his building ? Yet part of the evidence in this case was given to show the advantage to the plaintiff of tying the two walls together, in the stability of his house, which, of course, entered into the consideration of damages. Again, nothing is said in the agreement of the kind of house the plaintiff was to build. Was he at liberty to build a palace or any other costly building, and claim damages for injury to such a building by the defendant’s refusal to allow him the front of his for a support ? Yet the evidence was directed to the injury to the particular building; some of the witnesses testified, that the kind of connection of the walls desired by the plaintiff was only proper in case of a store, and estimates were made of losses of rent and the like, by reason of the appearance of the building in such case.

Again, the damages for breach of covenant, for not permitting the use of a wall, would be recoverable, but once.

The estimate of the whole future injury must be then made. For disturbance of an easement the injury is continuous, and each successive act of hindrance is a subject of suit. (Blunt v. McCormick, 3 Den., 283.) The plaintiff in this case has been clearly awarded damages for injury for all future time, and particularly for that supposed to arise from a necessary and compulsory change in the character of his building.

The defendant had begun to build the wall in question before making the September agreement, and no time was limited therein for commencing its use by the plaintiff. The time of granting the easement being left entirely undetermined by the instrument, was apparently to be determined by the giving the deed or finishing the wall; probably the former, as provision is made for reimbursing the plaintiff for any expense to which he should be put in building, in case the title proved defective. It is therefore a matter of some doubt whether, until the time when the deed should be delivered and the plaintiff thereby acquired the easement, he could exact the use of the wall.

But even if the grant of such easement had been executed before the acts of the (defendant complained of were committed, it is by no means apparent from the face of the instrument of September, that either they or those set forth in the complaint would have been a violation of such easement. That was a right to use the wall in question in the erection of the plaintiff’s building, and for that purpose to insert beams to be kept there forever; such wall to remain a party, wall. The first branch would only imply a temporary use, were it not qualified by allowing the beams to remain. That, however, gives no right beyond the terms of the contract, and unless the lintel course could be construed to be a beam, the plaintiff had no right to insert it in the defendant’s wall.

It is not a matter of judicial cognizance that tying front walls together is a part of the use of a wall as a party wall, if that be part of the plaintiff’s right, and it requires to be established by evidence. It is not in evidence, in tMs case, even how much of the comer of a wall belongs to a front and how much to a side wall when they unite. It must be a matter of practical construction. It would not follow that the plaintiff had a right to insert beams anywhere, because there was no limitation of the place. Unless a lintel course therefore be a beam within the meaning of the contract of September, the first part of the right granted has not been assailed. What the legal rights and burdens of a party wall are, or even its definition, is as yet scarcely settled definitively. The term is commonly applied to a wall, of which, if divided longitudinally, the two parts rest on land belonging to different owners, built solidly of materials not easily divided, or whose parts cannot be taken down without danger to the whole structure. In such c¡ase either party may remove the half on his own land, if it does not injure the other’s half, unless one or other owner has an easement by grant to have his neighbor keep up his half to support his own. (Sherred v. Cisco, 4 Sandf., 480; Eno v. Del Vecchio, 4 Duer, 53; 4 Man. & Gr., 714; 2 Car. & P., 250.) Walls, however, built entirely on one man’s land may acquire by grant the characteristics of party wall’s. (Brondage v. Warner, 2 Hill, 148.) In such cases the rights of the parties must depend exclusively on the character of the grant.

In so large and old a city as Hew York, to designate a wall as a party wall, may possibly, by usage, communicate to it certain attributes derived from the understanding and customs of builders and those dealing in the sale of real estate with buildings erected thereon. But in this case no distinct evidence was given that the term “party ivall” had acquired any peculiar significance beyond its ordinary meaning, although there was an attempt made to prove what, by custom, were the rights of parties interested in a “party wall.” The latter was abandoned in order to prove, by witnesses, under their understanding of the contract whatever that might be, what were the rights of each party under supposed customs. Ho interpretation of the agreement was given to them as a guide; consequently, as might have been expected, their testimony was widely variant. Most were influenced by the consideration that the agreement gave a privilege of inserting beams and chimney backs at the depth of four inches, with which the injury complained of had nothing to do, unless a lintel course was a beam within the meaning of the contract. Some read it as a permission to use the dividing wall in question generally as a party wall in the erection of the plaintiff’s building, although for that purpose it was limited to be used in a particular manner; many reduced the privileges given by the contract to one, compounded of all, to wit, to use the wall as a party wall in erecting the plaintiff’s building, and, as such, to insert beams and chimney backs penetrating to a certain distance; whereas, the two rights are kept separate in the original instrument. Eone testified that, according to any usage or understanding of trade, a right to cut into a part of a front wall which formed the continuation of a side wall, and was common to both where they united, followed the conversion of such side wall into a party wall. Such testimony might have formed an important. part of the case. What was actually received was improper, in allowing the witnesses to determine the legal effect of the agreement, and evidently had strong influence upon the mind* of the Beferee.

The right of the plaintiff to cut into such wall, as affected by custom, is the more important, as the place where it was to be done was not prescribed by the agreement. That his lintel course corresponded with the defendant’s was a mere matter of accident. He might have chosen to make it higher or lower, and he would have had the same right to cut into the brick work as he claimed in regard to the stone work. Indeed, from the testimony of some of the witnesses, the whole of such right would seem to have depended entirely on the kind of building he erected. As it was, the testimony was conflicting as to the right to cut into brick work. This right, too, of cutting into the defendant’s front wall, of course, would have remained as long as the wall stood, and might be enforced at any time. ’

The witnesses on the trial divided on the question whether the right was the same when the ground on which the wall stood, or any part of it, was not conveyed but only a privilege to insert beams given; the weight of testimony being rather that in the latter case no such right existed. But no one undertook to testify how far a grantee might penetrate the wall in case it was merely made a party wall and nothing was said about its thickness. They seem to have assumed it was to be to the depth of one-half the thickness; evidently looking at cases where different parts of the width of -the wall stood on adjoining land of different owners. It should clearly have appeared whether the right of cutting off part of the defendant’s lintel arose from that of inserting beams, or followed the conversion of a wall into a party wall. It is impossible, therefore, from the testimony to discover of which right the defendant’s supposed delinquency was a violation. The Court is at liberty to determine from the evidence only whether it sustains the complaint. The evidence in this case does not sustain the charges, either that the defendant's acts were an obstruction to the use of the wall as a party wall, or that the junction of the plaintiff’s front wall with the front wall of the defendant was a use of the side wall as a party wall. It is true that the evidence tends to establish that such junction was useful to the plaintiff and rendered his building more stable, but unless the defendant agreed he should make it so by that means, it is immaterial.

Much of the evidence was employed in establishing that the mode in which the plaintiff built his house • was the best possible mode of securing it, if he could not fasten his front wall to the adjoining house. This is entirely immaterial. The plaintiff was also permitted to prove, as a measure of damages, the difference of value in his house, in case he had been allowed to use the adjoining front wall of the defendant’^. This I think was erroneous. The damages should certainly be the same to every man on the same covenant. Non constat but the plaintiff built his house to enhance the damages. But if not, it was erroneous to prevent the defendant from proving what it would cost to place the plaintiff’s house in the same condition in which it would have been, had the defendant not interfered with him. The exclusion of the question to the defendant, whether he had ever prevented the plaintiff from tying the walls together, except by prohibiting his cutting out the four inches was clearly erroneous, since it went directly to contradict the testimony of the latter. Ho reason is furnished for its exclusion. Ho objection was made that it was leading and had been answered before, as the plaintiff’s counsel supposes. Evidence had been given to prove other interference by the defendant, and he had a right to deny it under oath. This would be sufficient cause for sending the case to a new trial, but the other reasons of more importance in the admission of testimony, require a re-examination of the cause.

The judgment must therefore be reversed, and a new trial had, with costs to abide the event, the order of reference to be discharged.

White, J.

The agreement and grant of the defendant, upon which this action is brought, and by the terms of which he agreed to build a wall of the depth of fifty feet, and of a height above the sidewalk sufficient for a four story house, on his own lot of land, adjoining the northerly line, of the plaintiff’s lot, and whereby, also, he granted to the plaintiff the right to insert the beams of his (the plaintiff’s) intended building four inches into said wall, and to insert therein two chimney backs to the same depth, and to maintain such beams and chimney backs so long as said wall should stand, covenanting that he would do no act tending to the destruction of said wall, and declaring that said wall should be a party wall between the houses which plaintiff and defendant were respectively about to build on their said two adjoining lots,—is very vague in some particulars, such as the character or description of the plaintiff’s building.to be erected, and of the intended party wall; but still I think, that the instrument is capable of some reasonable construction and enforcement, and that an action might be maintained upon it in a proper case, at the suit of the plaintiff.

Taken in connection with the requirements of existing public law on the subject of the erection of buildings in the Oity of Few York, and the circumstances of place and business, the terms of the defendant’s covenant become sufficiently intelligible. The law requires that a party wall, or any exterior wall of a house in the Oity of Few York, of a height such as a four story house must necessarily be, must not be less than twelve inches in thickness, and it further requires, that the beams shall be inserted to the depth of four inches in .the wall, and that there shall be at least four inches in thickness of brickwork between the ends of the beams inserted in the wall upon each side. Erom these prevailing regulations, it can be properly deduced, that the party wall contracted for in this case, was to be at least twelve inches in thickness. And, as to the character of the plaintiff’s building to be erected, if the construction should be adopted, that the house should be one of a character not exceeding in value the best class or description of buildings erected in the immediate neighborhood mentioned in the contract, it would be a construction of which the defendant could not justly complain, as it would be a reasonable one, and the legal rules applicable in such a case would warrant, that any difficulty arising from ambiguity or absence of express terms, should be solved in a manner the least favorable to him. Such a construction should also be entirely satisfactory to the plaintiff, as it would secure to him indemnity, by furnishing him with a basis as favorable as he could reasonably demand for the calculation of damages, in case any damages should appear to have been sustained.

With respect to the rights acquired by the grantee under the defendant’s deed and covenant, I think, that the term “party wall,” when used in such an instrument, and in its general ordinary signification, means a dividing wall between two houses, to be used equally, for all the purposes of an exterior wall, by both “ partiesthat is, by the respective owners of both houses. This use, in its full, unrestricted sense, embraces not only the use of the interior face or side of the wall, but also such use of it as is necessary to form a complete and perfect junction in an ordinary, good, mechanical manner between it and the other exterior walls of the house.

This, I think, is a correct definition of a “party wall,”' and of the rights which the grant of an unrestricted use of it confers upon the owner of the house of which it forms, or is to form one of the exterior walls; and the right of the grantee of such unrestricted use would be the same whether the wall stood one half upon the land of one owner and one half upon the land of the other, or stood wholly upon the land of the grantor of the unrestricted use. This right can, of course, be restricted or limited by the terms of the instrument granting it; but if no restrictive words are employed, and if the grant to an adjoining owner is in its terms simply a grant of a right to use a wall as a “ party wall,” then his right to its use for the purposes of an exterior wall for his building or erection, is as full and ample as is the right of the grantor to its use and benefits for the purposes of an exterior wall for his building.

Entertaining this view of the agreement of the parties, and of the force and meaning of the word “ party wall,” I am inclined to the opinion that the Beferee, upon the testimony received by him, came to a correct conclusion in this case, upon the question of a violation of contract by the defendant; and if, in every other respect, the proceedings before him were satisfactory, I would not feel disposed to order a new trial, either upon account of this conclusion, or of the amount of damages awarded And in this connection I will say, that the evidence given, by the plaintiff, to show that he had built his house as well as it could have been built while deprived by the defendant of the right to connect his front wall with, or to rest it upon th,e party wall, appears to me to have been properly received; and, on the other side, that the testimony offered by the defendant with the intent to contradict that evidence, was improperly rejected.

As, however, the term “party wall,” and the rights which the owner or grantee of its use acquires by mere force of the employment of that term in a grant or covenant, have never, I believe, been judicially defined, and as a true understanding of them may be materially aided by intelligent and well directed testimony, which does not appear to have been produced upon the trial that has already taken place in this cause, the witnesses on the trial having been left without any authoritative interpretation of the contract by the Beferee, to aid them in the formation of the opinions which they were required to give, and also inasmuch as some testimony offered by the defendant was improperly excluded, especially the testimony of the defendant himself, on the question whether he had prevented the plaintiff from connecting Ms front wall with the party wall,—I fully concur in the propriety of reversing the judgment and ordering a new trial, with costs to abide the event, the order of reference to be discharged if either party desires it; the proceedings upon such new trial to be governed by the principles herein indicated.

Barbour, J.

I concur in the conclusion to which my brethren have arrived, upon the ground that the party wall which the defendant covenanted to erect, was to be used by the plaintiff only to the extent, and in the manner, particularly specified in the agreement; that is, he was to use it for the purpose of inserting the beams of his house to the extent of four inches,, and, also, of inserting two cMmney backs to the same extent. Fo other privilege to use the wall was covered by the covenant; anchors are not named, and are, therefore, excluded. Expressio unius est exclusio alterms. So, for the same reason, as to the right claimed by the plaintiff to lap his front over or upon the wall. The fact, too, it naay also be said, that the defendant covenanted to erect the wall from the easterly side of the avenue, fifty feet in length, is quite inconsistent with the latter claim ; as a perpendicular wall, built upon the line of the street, would leave no space in its front extremity for the insertion of other bricks. He was bound by his covenant to build it flush with the line of the street, and the plaintiff accepted that covenant.

Judgment reversed, and a new trial ordered.  