
    Hannah Ehrenreich, Respondent, v. Frank L. Froment, Appellant.
    
      Conveyances of a row of several houses and lots, by descriptions each beginning a certain number of feet from a corner and running through party walls—construction thereof, where the distances do not accord with the centers of the party walls— location of the division lines in the house fronts—rights in the party walls.
    
    The owners of a plot of land on the southeast corner of Madison avenue and Seventy-fourth street, in the city of New York, erected on the south side of Seventy-fourth street eleven houses, twenty feet in width and fifty feet in depth, which were divided by party walls. In conveying the houses the builders described each of them as commencing at a point on Seventy-fourth street, a certain number of feet east of Madison avenue, thence running easterly along Seventy-fourth street twenty feet; thence southerly, part of the distance through the center of the party wall of the adjoining house, to the middle line of the block;-thence along the middle line of the block twenty feet; thence northerly, part of the way through a party wall, to the place of beginning. The center of the party wall which divided the two houses which were conveyed hy deeds describing the property as beginning, respectively, at points two hundred and sixty and two hundred and eighty feet east of Madison avenue, was actually located two hundred and eighty feet and four inches east of Madison avenue.
    In rebuilding the front of the house, which was described as commencing at a point 280 feet east of Madison avenue, the owmer of that house cut away a portion of the front and the stoop of the adjoining house on the west which had been erected on the four inches in question.
    
      Held, that while it -was the intention of the parties to convey each house erected upon the land, so that it would include a portion of each of the party walls giving a right of support to each adjoining house, this intention would not require that the line of ownership in the land should be exactly in the center of the party wall;
    That the boundary between the two houses was a point 280 feet east of Madison avenue, and that the owner of the property described as commencing 280 feet east of Madison avenue had not exceeded his rights in removing the portion of the front and of the stoop of the adjoining house which extended east of this point.
    
      Semble, however, that he would have no right to interfere with the party wall.
    Daughlin, J., dissented.
    
      Appeal by the defendant, Frank L. Froment, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of October, 1901, upon the decision of the court rendered after a trial at the New York Special Term, which judgment granted an injunction restraining the defendant from interfering in any manner with plaintiff’s property Ho. 48 Fast Seventy-fourth street, in the city of New York, and directed the defendant “to restore the front of the plaintiff’s said house to its original condition up to a vertical line drawn from a point at the street level in front of the centre of the party wall between the' plaintiff’s said house and the defendant’s house Ho. 50 East Seventy-fourth street, to the top of said plaintiff’s house.”
    
      Edward M. Shepard, for the appellant.
    
      Jacob Fromme, for the respondent.
   Ingraham, J.:

The question in this case depends upon the boundary line between the plaintiff’s and the defendant’s houses in East Seventy-fourtli street, city of Hew York. It appeared that prior to the year 1870 Peter V. Winters and William T. Hunt were the owners of twelve lots of land on the southeast corner of Madison avenue and Seventy-fourth street. They erected upon this plot of land eleven houses on the south side of Seventy-fourth street and five houses upon Madison avenue. These houses upon Seventy-fourth street were twenty feet in width and fifty feet in depth, and were divided by party walls. The houses were set back from the street, leaving a yard in the rear about forty-five feet deep. The plaintiff seems to have acquired title to her house in 1879, and since that time has occupied it as a residence, and subsequently the defendant acquired title to the house on the east. In June, 1900, the defendant rebuilt the front of his house, and in removing the old front his workmen cut some of the brown stone of which the front wall of the plaintiff’s house was constructed, and it was to restrain this interference with the plaintiff’s front wall and stoop, and to require the defendant to restore the premises to the condition they were in before this interference by him, that this action was brought.

The original owners of these two houses made their first conveyance to the plaintiff’s grantor, and the question must be decided upon the description by which the owners of both houses conveyed the plaintiff’s house. The instrument through which the plaintiff acquired title was a mortgage executed on the 16th day of June, 1870, to the • North American Life Insurance Company, by which the plaintiff’s house was conveyed by the following description: " Beginning at a point on the southerly side of 74th Street, distant 260 feet easterly from the corner formed by the intei'section of the easterly side of Madison Avenue with the southerly side of 74th Street; thence running easterly along the southerly side of 74th Street 20 feet; thence southerly on a line parallel with Madison Avenue and part of the distance through the centre of a party wall erected partly on the land hereby conveyed and partly on the land adjoining thereto on the east, 102 feet and 2 inches to the centre line of the block between 74th and 73rd Streets; thepce westerly and on a line parallel with 74th Street 20 feet, and thence northerly, on a line parallel with Madison Avenue and part of the distance through the centre of a party wall erected partly on the land hereby conveyed and partly on the land adjoining thereto on the west, 102 feet and 2 inches to the southerly side of 74th Street at the point or place of beginning.” This mortgage was subsequently foreclosed, and the plaintiff acquired title by a deed under a judgment of foreclosure by the same description as that contained in the mortgage.

It was proved that the center of the party wall between the plaintiff’s and the defendant’s houses was four inches east of a point 280 feet east of Madison avenue, and that the defendant in cutting away a portion of the plaintiff’s wall, to make room for the new front of the house that he had erected, had cut away some portion -of the wall on this four inches; and it is this act of the defendant of which the plaintiff complains. If, therefore, by this description, the plaintiff acquired title to this four inches, and the easterly boundary of his property conveyed extended to a point 280 feet and •4 inches east of the corner of Madison avenue and Seventy-fourth street, then the judgment was right and should be affirmed. If, however, the plaintiff’s title extends only to a point 280 feet east of Madison avenue, then the judgment should be reversed.

The portion of the plaintiff’s stoop and front removed by the defendant was all upon this four inches east of a point 280 feet east of Madison avenue. There was introduced in evidence the deeds of all the Seventy-fourth street houses, and from them it appeared that the conveyance of the most westerly of the houses commenced at a point on Seventy-fourth street 80 feet east of Madison avenue, and each of the deeds of the other houses in this block was substantially of the same description, commencing at a point a certain number of feet east of Madison avenue and running thence through the center of the party wall between the house conveyed and the adjoining houses, the parties evidently assuming that the center of the party wall between the various houses was opposite the point on Seventy-fourth street at which, by the description, the boundary line was to commence. Undoubtedly, at the time these conveyances were made, the houses themselves existed as permanent structures. The party wall between each of the houses was intended to be and was made by these deeds the boundary line between the houses; but it is also clear that it was the intention to convey a plot of ground 20 feet in width by half the block in depth ; and if the construction of the plaintiff prevails, the result is that the defendant has a plot of land less than 20 feet in width, although his conveyance expressly calls for a plot of land of this width.

The description of the property conveyed to the plaintiff, to which attention has been called, begins at a point on the southerly side of Seventy-fourth street, distant 260 feet easterly from Madison avenue. The line of the plaintiff’s property the.n runs easterly along the southerly side of Seventy-fourth street 20 feet; and that would bring the easterly line of the property conveyed to the plaintiff to a point 280 feet east of Madison avenue. This point is not 280 feet and 4 inches, but 280 feet, and that is the limit of the plaintiff’s property to the east. From that point the easterly line of the plaintiff’s property runs southerly on a line parallel with Madison avenue to the center line of the block. That line parallel with Madison avenue would necessarily be a line at all points distant 280 feet from Madison avenue, and would necessarily be a straight line from a point on Seventy-fourth street 280 feet east of Madison avenue to a point on the center line of the block, also 280 feet from Madison avenue, and would give to the plaintiff a piece of land, with the buildings thereon erected, 20 feet in width from the southerly side of Seventy-fourth street to the center of the block. All of the deeds executed by the grantors about the same time conveying these houses indicated a like intention to convey to each of the grantees a plot of land 20 feet in width by a half a block in depth, within the boundaries contained determined by the distance from Madison avenue. Does the addition to the description by which this line, which commenced at" a point on Seventy-fourth street distant 280 feet east of Madison avenue, was to run a part of the way through the center of the party wall, shift this line 4 inches to the east so as to convey to this plaintiff a lot of land the east boundary of which is 280 feet 4 inches east of Madison avenue ? It seems to me clear that such was not the intention. We have here a case in which it may be said that parts of this description are inconsistent with each other, when we are to ascertain as clearly as possible the intention of the parties in making the grants, and to give effect to that portion of the description which would best carry out the intention as thus ascertained. It was plainly the intention of the parties to convey the house erected upon the land, which would include a portion of each of the party walls, giving the right of support to each adjoining house; but this does not require that the line of ownership in the land should be exactly in the center of each party wall. Undoubtedly, any interference by this defendant with the plaintiff’s right of support would be an interference with or destruction of the plaintiff’s easement, which would render the plaintiff liable for damages, or which the court in a proper action would enjoin; but as I understand, the right that is here sought to-be enforced is not an interference with the party wall, but an interference with the plaintiff’s stoop and brown stone front in front of the party wall, and east of a line commencing at a point on Seventy-fourth street 280 feet east of Madison avenue.

From the description, construed as it must be in relation to the existing conditions when the grant was made, I think that this boundary line commenced 280 feet east of Madison avenue, and ran thence southerly and parallel with Madison avenue to the center of the block.

It would be of but little use, I think, to examine the various authorities cited by counsel. The case of Smyth v. McCool (22 Hun, 595) seems to be the nearest in point, and that is a distinct authority in favor of the conclusion at which we have arrived. What we have to determine is, what was the easterly boundary of the plaintiff’s property intended by the parties to the mortgage by which it was conveyed ? There can be no doubt, we think, but that they intended that the easterly boundary of the plaintiff’s lot and the westerly boundary of the defendant’s lot should commence at a point on Seventy-fourth street 280 feet east of Madison avenue. That express point was fixed in bo.tli conveyances as the point where the line should commence to run. Both conveyances also expressly provide that that line should then run southerly and parallel with Madison avenue to the center line of the block. It was intended to convey to each of the parties a plot of land 20 feet in width. The grantors had not a plot of land 20 feet in width to convey to the defendant’s grantor if the point of beginning should be, as the plaintiff claims, 280 feet and 4 inches east of Madison avenue, and then, the parties having fixed the starting point of the boundary between the plaintiff’s and the defendant’s houses at a point 280 feet east of Madison avenue, the boundary line was to be a line parallel with Madison avenue. That would be impossible if it was intended to run it through the center of the party wall, if that center was either east or west of this fixed point. This wall extended something less than one-half of the boundary line. It could not be a straight line and start from the point intended by both conveyances, run parallel with Madison avenue, and also through the center of the party wall. There is nothing to indicate that a zigzag line was intended, or that there was any practical location of this line at the center of the wall, so as to overcome the provision of the description fixing the point at which the line was to commence which would carry it four inches to the east of that point. There has never been a practical construction by the parties as to whether this line ran through the center of the wall or four inches to the west of the center of the wall, for, until a change was made in the buildings upon one of the lots, that question would not be the subject of controversy. The question is one, it seems to me, of intention, considering the description in the grants made, the condition of the property and the surrounding circumstances; and from all these we are able to draw but one conclusion, and that is, that it was the intention of the parties to grant to the plaintiff a plot of land commencing 260 feet east of Madison avenue, 20 feet in width and 100 feet in depth, giving to the plaintiff or her grantors the right to use these party walls as a support to her house in the position in which they were built; and that right, as we understand it, the defendant has not interfered with.

Arriving at this conclusion, it follows that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

Either the owner made a mistake in locating his houses or the surveyors of to-day are mistaken with reference to their measurements ; but it matters not which for the determination of the question here presented. It is manifest, I think, that the owner intended to sell as separate and distinct lots the premises upon which each house was built, and that, therefore, the boundary lines running through the party walls, and not the measurements from the street corner, should control.

It happens in this instance that the mistake affects only a strip of land four inches and a half in width, and under the decision about to be made, probably some of each party wall is left with each lot; but according to the rule of law which is to be adopted by the prevailing opinion, the construction would be the same if the discrepancy in the measurements had been fourteen inches. I cannot subscribe to a doctrine, applicable to the construction of deeds, declaring that where the owner of a tract of land builds many houses thereon, separated only by party walls, and then sells each house and lot separately by descriptions showing the boundary lines running through the middle of the party walls, that this plain intention of the grantor to sell the lot covered by the entire building is to be overthrown by the mere fact that it is inconsistent with a measurement from the starting point, taking a street corner as the monument.

Judgment reversed, new trial ordered, costs to appellant to abide event.  