
    John Lefoy Brower and A. Thew H. Brower, as Executors of and Trustees under the Last Will and Testament of John L. Brower, Deceased, Appellants, v. John T. Williams and Charles H. Southard, Respondents.
    
      Unrecorded party wall agreement — the destruction of the party wall not enjoined— rule, where the defendant will suffer more damage by the granting of an injunction, than the plaintiff by its refusal.
    
    A. and B., owners of adjoining lots, entered into an agreement in 1867 by which B. agreed to erect, in connection with a building on his lot, a party wall, at least eight inches of which should stand upon A.’s land, and by which A. covenanted on behalf of himself, his heirs, executors, administrators or assigns, that as soon as he or any one claiming under him should use the wall, he or they • would pay the value of the portion standing on A.’s land. B. built the wall as contemplated, but neither A. nor his successors in interest ever used it.
    In 1898, and before the party wall agreement had been recorded, a bona fide purchaser, having no knowledge of its existence, acquired title to B.’s lot, and commenced to tear down the old building, including the party wall, for the purpose of erecting a new structure on the lot. A.’s successors in interest then brought an action to enjoin the destruction of the wall, and upon an appeal from an order denying a motion to continue, pendente lite, a temporary injunction obtained in the action, it was
    
      Held, that the refusal was proper, as in view of the failure to record the agreement, and of the fact that the wall had never been used by A. nor bis successors in interest, B.’s grantee was entitled to assume that the wall in question was not a party wall, but was one of the walls of his building which, through a mistake, had been built upon the adjoining lot;
    That the refusal was also proper, in view of the fact that it appeared that the damages which B.’s' grantee would sustain from the injunction pendente lite, would he greatly in excess of those which A.’s successors in interest would sustain from the tearing down of the wall.
    Appeal by the plaintiffs, John Lefoy Brower and another, as executors of and trustees under the last will and testament of John L. Brower, deceased, from an order of the Supreme Court, made .at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of August, 1899, denying their motion to continue, pendente lite, a temporary injunction.
    The action was brought to restrain the defendant from tearing down the party wall referred to in the opinion, and to recover damages fqr the injury done to such wall "by the defendants.
    
      
      Charles De Hart Brower, for the appellants.
    
      D. B. Ogden, for the respondents.
   McLaughlin, J.:

The defendant Williams is the owner of a plot of land situated on the northeast corner of Beach and West streets, in the city of Ñew York, a,nd the plaintiffs are the owners of a plot immediately adjoining it on the north. x

In June,.1867, the plot now owned by Williams was owned by William Chamberlain and George A. Phelps; and the plot now owned by the plaintiffs was owned by one John L. Brower. In that month Chamberlain and Phelps and Brower entered into a written agreement, which recites that the parties were the respective owners of the land referred to, and that Chamberlain and Phelps were about to erect upon their lot a building, and inasmuch as. all the parties were desirous of having a party wall between the two lots, it was agreed that Chamberlain and Phelps should erect, in-connection with their building, a party wall> not less than eight inches of which should stand upon the land of Brower, and that the wall, when erected, should be and thereafter remain a party wall, to be used in common by the respective owners arid their successors in interest. Brower covenanted for himself,, his heirs, executors, administrators and assigns, that as soon as he, or any.one claiming under him, should use the wall, he or they would pay to Chamberlain and Phelps, or their successors in interest, the Value of so much of the wall as should then be standing upon Brower’s land, such value to be ascertained in the manner pointed out in the agreement. This agreement had not, at the time Williams purchased, been recorded.

In pursuance of the agreement, Chamberlain and Phelps constructed one wall of their building so that eight inches of it stood upon Brower’s land. At that time there was standing upon Brow-er’s land a building having an independent wall, which was not contiguous to or in any way connected with .the wall constructed by Chamberlain and Phelps, but which was separated from ■ it by a space of from one to two and one-half inches, except near the front where the space was filled in. The plaintiffs, and their predecessors in interest, never used the wall built, by Chamberlain' and Phelps, and they never paid any part of the cost of its construction.

The defendant Williams acquired his interest in May, 1898, and it is not disputed that at the time of his purchase he had no knowledge, either actual or constructive, of the agreement above referred to. Shortly after the purchase the defendant commenced to tear down the building standing on 1ns land for the purpose of erecting a new building thereon at a'cost of over $150,000, plans ■and specifications of which had theretofore been filed with the building department; and he commenced to remove the old wall ■erected by Chamberlain and Phelps. He had taken it down as far ■as the second story, when the plaintiffs applied for and obtained a temporary injunction pending the return of an order to show cause why the same should not continue during the pendency of the action, restraining him from proceeding with that work. Upon the return of the order to show cause the temporary injunction was vacated, and the plaintiffs have appealed.

We think the injunction was properly vacated. The wall in question, so far as defendant Williams is concerned, is not in fact a party wall. When he purchased, the agreement of 1867, between Chamberlain and Phelps and Brower, had not been recorded, and there is nothing in the record before us to show that he had any knowledge, either actual or constructive, of its existence. The wall had never been used by the plaintiffs or their predecessors in interest, and the defendant, therefore,'had a right to assume, under such ■circumstances, that it. was not á 'party wall, but was one of the walls of his building which had, through ignorance, or a misconception ■as to the location of the true line of the lots, been partially built upon the adjoining land of another.

Further, the damages which would be sustained by the defendant Williams, if the injunction were to continue during the pendency of the action, would be so much in excess of any possible damage which the plaintiffs might suffer by reason of the removal of the wall, that the court was amply justified in refusing to exercise the discretion' which it had to continue the injunction. It was made to appear that the defendant was proceeding to erect upon his lot a building at a cost of $150,000, and. had entered into a written contract by which he had leased such building for a period of ten years commencing on the 1st of December, 1899, at an annual rental of $17,000 per year, and had covenanted that the building should be ready for occupancy'by that time. It can readily be seen that the damages sustained by him, if the injunction were continued, would probably be largely in excess of any possible damage that the plaintiff would sustain by the tearing down of the old wall, and the court properly refused upon this account to continue the injunction. It is only in clear cases that this .power is exercised. The general rule is that an injunction, pendente lite will be refused where it will do greater -damage or create "greater injury to the defendant to grant it than to the plaintiff to refuse it. (People v. Canal Boards 55 N. Y. 390; Morgan v. City of Binghamton, 102 id. 500.)

The order is right and should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Prien and Ingraham, JJ., concurred.

Order affirmed, with costs.  