
    William Bayard Cutting et al., Resp’ts, v. William E. D. Stokes, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    Party wall—Construction of agreement.
    A party wall agreement entered into "by plaintiffs’ grantor and defendant-contained a provision that if at any time plaintiffs’ grantor, its successors or assigns, should elect not to use or occupy said wall, then defendant, on the tender of a deed of the land of said grantor occupied by said wall, should pay a certain price therefor. Held, that the wall when erected became a party wall and. would so continue unless the election provided for was made.
    Appeal from a judgment rendered by the court at special term, against the appellant, restraining him from maintaining openings or windows in the westerly wall of his dwelling house, on the southerly side of Eighty-sixth street in the city of Mew York, and directing and. requiring him to remove said window openings, and to build up the wall with solid brick masonry and to make it a solid or dead wall.
    
      William R. Martin (Ernest Hall, of counsel), for app’lt; Burrill, Zabriskie & Burrill (J. Archibald Murray, of counsel), for resp’ts.
   Per Curiam.

The House of Mercy, a corporation organized under the laws of this state, was, on the 22d day of July, 1889, the owner in fee of certain premises situated in the city of Mew York, and immediately adjoining certain other premises owned by the defendant. On that day the House of Mercy made a contract of sale with the plaintiffs in this action, embracing the premises owned by it, the deed to be delivered," and the remainder of the purchase money to be paid, January 1, 1890. A few months later the House of Mercy entered into a contract- with the defendant Stokes, who was about to erect a building upon the premises owned by him, which secured to Stokes the right to erect one-half of the westerly wall'upon the lot owned by the House of Mercy, with the right secured to the corporation of using the wall in common with Stokes as a party wall, when used the corporation to pay •its share of the,necessary expense incurred in the erection of the wall. After the making of the agreement, Stokes erected the building as he had contemplated, including the wall which was the subject of the agreement, but left in it certain openings for the purpose of light. The wall was finally completed prior to the delivery of the deed by the House of Mercy to the plaintiffs, which was on January 1, 1890. It is well settled that the adjacent proprietors own in severalty that portion of the wall which stands on their respective lands, subject, however, to its use as a party wall, and that they are mutually entitled to its support for the purposes for which it was erected, Partridge v. Gilbert, 15 N. Y., 601; that each has an easement to have his neighbor keep up his half to support his own, Fettretch v. Leamy, 9 Bosw., 510, and that a court of equity will enjoin the maintenance of openings or windows in a party wall. St. John v. Sweeney, 59 How. Pr., 175. The plaintiffs succeeded to the rights in such respect of the House of Mercy, notwithstanding their title was not acquired until after the wall was constructed; and this brings us to the question whether, under the agreement between Stokes and the House of Mercy, the wall which has since been erected in pursuance of it is a party wall. It recites that:

“Whereas, the said party of the second part (Stokes) is now about to erect a dwelling-house upon his said lot of land, and the said parties have mutually agreed that the westerly wall of such dwelling-house shall be built and erected one equal half part thereof upon the westerly side of the said lot of the party of the second part and the other equal half part thereof upon the easterly side of said lot of the party of the first part, subject to the-provisions of this agreement.”

Immediately following the granting clause, the agreement reads r “ So that the division line between the said two lots shall run through the center of said wall, which wall so to be erected is to be mutually used and enjoyed by the respective parties hereto and their respective heirs, successors and assigns, for all the purposes of a party wall between dwelling-houses or other buildings erected and which may be hereafter erected upon the said two respective lots of land, in just and equal rights and privileges with, respect thereto, except in the case hereinafter provided.”

The exception to which the last phrase refers furnishes whatever basis there is for the contention of the defendant that the wall is not a party wall, but before referring to it reference will be had to one or two other provisions of the agreement. The clause, last quoted is followed by certain covenants on the part of the party of the second part touching the rights and privileges to be accorded to the party of the first part in the use of the wall, which it is covenanted shall be “ to the same extent reciprocally as had been bargained and granted by the said party of the first part to the said party of the second part.” One equal half part of the cost and expense of building the said wall is, however, to be paid to the said party of the second part, his heirs and assigns, by the-said party of the first part, its successors or assigns, as soon as it or they shall make use of, occupy or enjoy the whole of said wall. The exception to which reference has been made is contained in the latter part of the agreement, and is to the effect that if the party of the first part (House of Mercy), its successors or assigns, “ shall at any time elect that it or they will not use or occupy the said wall as hereinbefore provided, then, and in such case, the said party of the second part, his heirs or assigns, on tender to him or them of a proper deed, duly executed for conveying to him or them the fee simple of such portion of said lot of the party of the first part on which said wall shall have been erected, free from all encumbrances, * * * will pay therefor the sum of two hundred and fifty dollars at the time of such tender.” The House of Mercy ■did not elect, nor have'the plaintiffs, as its successors in title, ■elected, that it or they will not use the wall. And the defendant’s •contention is that, until such election takes place, it cannot be •determined whether the wall is, under the agreement, a party wall. We do'not so read the contract. It provides for its erection as a party wall. Its use as such is contemplated by the parties. The rights of all the parties to it are fixed beyond the power of the party of the second part, acting alone, to interfere with it in any way. In order to secure the contract with the House of Mercy, he accorded to it one additional privilege, i. e., if at any time before that corporation, or its successor in title, should make actual use of the wall by the erection of a building, he would, if it or they should elect to take it, pay $250 for so much of its land as the wall covers. When the wall was erected it became, by virtue of the provisions of the agreement, a party wall, and it will so continue, unless the successors of the House of Mercy in the ownership of the lot referred to shall make the election authorized by the agreement. The judgment should be affirmed, with ■costs.

Yan Brunt, P. J., Eollett and Parker, JJ., concur.  