
    (67 Hun, 315.)
    MITTNACHT v. SLEVIN.
    (Supreme Court, General Term, First ■ Department.
    February 17, 1893.)
    1. Party Walls—Construction of Contract—Injunction.
    Plaintiff and defendant entered into a written agreement, which, after reciting that the parties were the respective owners of adjoining city lots, and that defendant was about to erect a five-story building on his lot, provided that defendant might build one half of one wall of such building on plaintiff’s lot, plaintiff to pay for part of the cost of such wall, and to have the right to use it as a party wall. The agreement contained no restriction as to the height of defendant’s building. Held, that plaintiff could not enjoin defendant from increasing the height of his building to six stories, provided such increase could be made without detriment to the strength of the wall or to the property of plaintiff.
    3. Same—Parol Evidence to Modify Writing. ,
    Such agreement not being ambiguous, evidence as to the intention of the parties in making it is inadmissible in an action to enforce it.
    Appeal from special term, New York county.
    Action by Catharine Mittnacht against James J. Slevin for injunction. The complaint was dismissed at the hearing, and plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Ernest G. Stedman, (John Larkin, of counsel,) for appellant.
    Goepel & Raegener, (Louis 0. Raegener and B. B. ICenyon, of counsel,) for respondent.
   VAN BRUNT, P. J.

This action was commenced to restrain the defendant from building a certain party wall six stories high. ■ It appeared upon the trial that the parties to the action were the owners of adjoining premises, known as Nos. 23 and 25 Spring street. They executed a party-wall agreement, by which, after reciting the ownership of the premises known as No. 25 Spring street by the defendant, and the ownership of No. 23 Spring street by the plaintiff, and that the defendant was about to erect on his said lot of land a five-story building, it was agreed between the parties that the easterly wall of the building thus to be erected by the defendant should be a party wall, and should stand half on the land of each of the parties thereto to the whole depth of the lots of said respective parties, and it was provided as follows: First. That the defendant might, in the erection of his said building, build one- half of the easterly wall thereof on the land of the plaintiff to the whole depth of the lot, the foundation wall being 20 inches in thickness below the curb, 16 inches in thickness up to 40 feet above, and 12 inches in thickness above that; and that when the wall should be built and completed, the plaintiff should pay the defendant the sum of $500 in .full for her share of the cost of the wall, and said wall should be and remain a party wall so long as said building should stand, and the plaintiff should have the right to use the wall as a party wall on payment being made as aforesaid; and that, in case of a partial destruction of said wall by fire or otherwise, the same should be rebuilt at the joint expense of each of the parties thereto. The party wall was subsequently built, and the plaintiff erected a five-story and the defendant a six-story building; and the question presented is whether the plaintiff had a right to enjoin the construction of the additional story by the defendant upon his building, it being claimed upon the part of the plaintiff that he is restricted to a five-story building by the terms of the agreement.

We fail to find any such restriction contained in the agreement. It was entirely immaterial what the defendant contemplated, at the time of entering into the agreement, in respect to the height of the building which he was about to erect, because, the wall being a party wall, he had the right to increase the height of the wall, provided such increase could be made without detriment to the strength of the wall or to the property of the adjacent owner. Brooks v. Curtis, 50 N. Y. 639. And this has become the established rule in reference to the owners of party walls in this state. Therefore, unless the agreement contained restrictive words prohibiting the use of the wall for a building of more than five stories in height, the defendant, if he had originally constructed a five-story building, would have the right to put an additional story upon it, unless he endangered the safety of the wall, which is not claimed. Therefore the recital as to what was contemplated at the time of entering into this party-wall agreement could not in any wise restrict the rights which had been conferred by the active portions of the agreement itself. •We think, therefore, that there was no ground for the interference of the court, and that the defendant had the right to increase the height of the wall as he did.

As to the question upon the construction of the agreement, and the evidence attempted to be introduced for the purpose of showing the intention of the parties, such evidence was entirely immaterial. The agreement is not in any way ambiguous. It does not need construction, and, as far as this question is concerned, it is entirely immaterial, as already observed, what was in the contemplation of the parties at the time of entering into the agreement as to. the height of the building to be erected. They intended to enter' into the party-wall agreement, which they did, and the rights thereby conferred cannot be taken away by construction or evidence as to intention.

The judgment should be affirmed, with costs. All concur.  