
    Henry J. Negus, Resp’t, v. Louis W. Becker et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed October 9, 1894.)
    
    1. Party wall—Rights.
    The only restriction upon the use, hy either of the adjoining property owners of a party wall, is that such use shall not be detrimental to the other.
    2. Same.
    A party has the legal right to increase the height of the wall to the point contemplated by the party wall agreement and is not liable, if he provides for the work in a proper, lawful and usual manner, and is not guilty of any act contributing to the injury.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.
    
      William H Henderson, for app’lts; Hudson Ansley, for resp’t
   GtrAy, J.

The direction of a verdict for the plaintiff proceeded upon the theory that, in undertaking to have the party wall carried up, in order to provide for the third story of their building, the defendants assumed an unqualified liability to the plaintiff for any occurrence in the course of construction, resulting in an injury to him. There is no charge in the complaint, and there was no evidence to show, that the erection of this wall was something intrinsically dangerous, and, therefore, a matter which imposed upon the defendants a responsibility, in case of resulting damage to their neighbor, from which they could not escape by any plea. The gravamen of the complaint seems to be in the proposition that, because the defendants extended the party wall to the full depth of the boundary line and. carried it higher up, without the plaintiff’s knowledge or consent, they did so at their peril and became absolutely liable, or insurers, for all possible injurious results. In the opinion of the general term, upon the authority of Brooks v. Curtis, 50 N. Y. 639, and of Schile v. Brokhahus, 80 id. 619, it was held that it was unnecessary for the claim in the complaint to be based upon negligence; that, while the defendants had the right to use the wall as they did, they “ insured the safety of the operation.” “ The party making the change,” it was said, “is absolutely responsible for any damage which it occasions.” We cannot agree with the court below íd their view of the question, or that it is controlled by the authorities cited. Schile v. Brokhahus was an action for trespass, in tearing down a portion of a partition wall, and it was tried upon the theory, as Chief J udge Church stated, “that the defendant, in disregard of the plaintiff’s rights, commenced to tear down the old wall, claiming that i't stood ’ entirely upon his own land, and intending to erect a new wall for himself, without giving the plaintiff’s property any benefit from it as a party wall, and that this was a trespass which caused the injury complained of.” It was upon that theory that the jury found for the plaintiff and that the judgment was affirmed. Brooks v. Curtis was an action to compel the defendants to remove certain alleged encroachments, which consisted in making additions to the party wall. The plaintiff was held not to be entitled to relief, so far as the carrying up of the wall was concerned; but because, as the roof of the new building was constructed, it caused water, snow and ice to fall upon the plaintiff’s building, the defendants were held to have been properly restrained from maintaining it in that condition. Judge Rapallo made the following observation: “ We think that the right of either of the adjacent owners to increase the height .of a party wall, where it can be done without injury to the adjoining building, and the wall is clearly of sufficient strength to safely bear the addition, is necessarily included in the easement. The party making the addition does it at his peril; and if injury results he is liable for all damages. He must insure the safety of the operation. But when safe it should be allowed. The wall is devoted to the purpose of being used for the common benefit of both tenants.”

The argument is that this language formulated the rule of liability for this case. The respondent, in his brief, says: " Under the principle there enunciated, the appellants had a legal right to increase the height of the wall; but this was a conditional and not an absolute right. The condition is that he insures the safety of the operation.” We think the opinion in Brooks v. Curtis has been quite misapprehended, in deducing from it any such rule of absolute liability, and that the language quoted, which is relied upon as furnishing the rule, should receive no such reading. In connection with the facts, it was appropriate. The “safety” there alluded to, which the building party insures, has reference to the strength of the wall to support the addition ; or to the manner of its construction, as furnishing thereafter a possible source of danger, or of nuisance to the adjoining owner. It did not mean safety against uncontrollable accidents, or the results of some third party’s negligence. This is clear from the reading of the ballance of the opinion, as well as from a fair consideration of the question.

A party wall is for the mutual convenience and benefit of adjoining property owners and the only restriction upon its use by either is that that use shall not be detrimental to the other. In this case the wall was the joint property of the parties. It was built for the purposes of a building of three stories in height, and if the plaintiff did not avail himself of his right to erect a building of such a size, that fact was no obstacle to the defendants building it up, as it had been intended and agreed upon; in order that it might furnish a wall for their own three-story building. They were within the exercise of their legal right in what they did, and it is impossible to see that they assumed any risk in building a wall of the height originally contemplated; so long as they contracted for one of suitable strength and so adapted as to serve, when built, the purposes of the' defendants’ new building, without detriment to the enjoyment by the plaintiff of his premises. The plaintiff’s agreement bound him to construct a party wall foundation sufficient for the purposes of a three-story building and he may not complain if the wall is carried up to subserve such a purpose. Had the defendants exceeded the height of three stories, it can then be seen that they might have become insurers of the safety of the wall; for they would have been without the protection of the party wall agreement and they would have been undertaking to do a thing, which would possibly, if not probably, be hazardous, in view of the limitations as to strength under which the foundation wall was built.

The peculiarity of this case is that there is no question of negligence involved, and, for his recovery, the plaintiff insists upon the application of the principle that where one of two persons has sustained damage, the one that has caused it, or contributed to it, must make it good; or that where an act is done for the benefit of one party, which damages another, the person to be benefited by the act insures the safety of the work and becomes answerable as an insurer. These principles are inapplicable and the difficulty with the position is that there is no restriction upon the lawful use by a party of his property, if he proceeds with due care in improving it. The defendants had the conceded right to carry up this wall, of which they were joint owners, for the use of their building and they provided for its erection in a lawful, proper and usual way. If there was negligence in the construction of the wall and its fall could be attributed, in any wise, to some negligent act of commission, or of omission, in the process of construction, it is very clear that the party liable for the resulting damage would be the contractor. By the contract between him and these defendants, he undertook to construct the wall. It was not a matter which the defendants were competent to engage in and, in contracting with Bobinson, they placed themselves in a position, which exonerated them from any responsibility for a negligent performance of the work. The performance of the work contracted for was neither dangerous, nor extraordinary, in itself, and hence the rule would apply that for an injury resulting to another, by reason of a negligent performance, the remedy would be solely against the contractor. The owner was innocent of any act contributing to the injury. We have lately discussed this doctrine in Engel v. Eureka Club, 137 N. Y. 100; 50 St. Rep. 188. But, as it has been already observed, no negligence is charged, and the case was left to stand upon the sole proposition that, however innocent the defendants of causing the occurrence, and however lawful their undertaking to build up the party wall, they must, nevertheless, be responsible for what happened. This cannot be, and is not, correct doctrine. If the fall of the wall was through some negligence in its construction, or in securing it, the liability was the contractor’s and not the property owners. If there was no such negligence and the fall was occasioned through some accident as, for instance, by the extraordinary force of the storm, which is mentioned, the defendants were not responsible. If, in the lawful use of one’s property, injury is occasioned to an adjacent owner, which the exercise of due care could not have prevented, there is no remedy. An illustration of this rule is presented by cases of the excavation of land, which deprive adjoining premises of lateral support; Lasala v. Holbrook, 4 Paige, 170; or, more recently, by the case of Booth v. R., W. & O. R. R. Co., 140 N. Y. 267; 55 St. Rep. 656; where the damage was caused by blasting.

Here there was damage, admittedly; but there was no wrong. As the complaint was framed and as the ea,se was tried, the fall of the wall was not laid to the fault of the defendants, or of their contractor, and upon such a case, plaintiff should have been non-suited.

It is our judgment that the judgments below should be reversed and that a judgment should be entered in favor of the defendants, dismissing the complaint; with costs in all the courts to the appellants. All concur, except Andrews, Oh. J., not sitting.

Judgment accordingly. 
      
      Reversing 52 St. Rep. 283.
     