
    Gisella Popper, Plaintiff, v. Joseph Gans, Defendant.
    (Supreme Court, New York Special Term,
    November, 1911.)
    Adjoining landowners— Rights as to support of buildings.
    Where a wall which does not appear to be a party wall stands partly on the land of each of two adjoining owners and both formerly used it simply to support the beams of their buildings, one of them who has since abandoned its use has thereby lost bis easement therein and cannot restrain the other from having win- • dows in the wall, nor does the fact that the wall stands partly on his land aid him in maintaining such an action,
    Action for injunction and damages — cutting windows in alleged party wall.
    C. Schwick, for plaintiff.
    Joseph Gans, for defendant in person.
   Newburger, J.

It appears that some years ago building's were erected upon the premises of the plaintiff as well as the defendant by a common owner, and that a wall divided the premises of the plaintiff and defendant. It is also conceded that the plaintiff or her predecessor has made no use of such wall for some time. While it is true that -the wall was used fpr many years as a common wall, yet the plaintiff and her predecessor having abandoned the use of same, and it being partly upon the premises occupied by the defendant, plaintiff cannot complain at this time that the same is used by the. defendant pursuant to directions of the tenement house department. There is no agreement upon record, nor is there any statement in any of the conveyances, 'that would lead this court’ to hold that this wall is a party wall. On the contrary, it is apparent to me that the same was simply used for the placing of beams therein, and when the plaintiff’s predecessor erected the building now owned by. the plaintiff he abandoned whatever rights he may have had in the wall. As to the contention of plaintiff that part of the wall was upon her land, that cannot 'be considered at this time, as this action is not brought to compel the defendant to remove the wall, but to restrain him from having the windows in • such wall. Plaintiff had an undoubted right to the use of the wall for the support of the beams of her own building as long as tire building continued. "Whatever easement plaintiff or her predecessor had in the wall undoubtedly ceased when same was abandoned. See Heartt v. Kruger, 121 N. Y. 386,

Judgment for defendant.  