
    Henry J. Negus, Resp't, v. Louis W. Becker el al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Party wall—-Increase of height.
    Plaintiff and defendants’ grantor entered into a party wall agreement by_which plaintiff was to erect a wall sufficient to sustain a three story building. Defendants undertook to erect a three story building on their lot, and employed a contractor who carried the wall up about eighteen feet, when a severe wind storm blew it upon plaintiff’s house and damaged it. Held, that defendants had a right to increase the height of the wall, but in making such addition did so at their peril, and were bound to insure the safety of the operation, and became responsible for the damage caused, irrespective of the question of negligence.
    
      2. Same—Estoppel.
    The clause in the agreement requiring the wall to be of sufficient strength to support a three story building, such as defendants were erecting, only estopped plaintiff from claiming that the wall was overweighted, and fell for that reason.
    Appeal by the defendants from a judgment in favor of the plaintiff entered in Cattaraugus county, March 1, 1892, upon the . verdict of a jury.
    
      William H. Henderson, for app’lt; Hudson Ansley, for resp’t.
   Lewis, J.

The plaintiff and one Andrew H. Krieger owned respectively adjoining lots of land in the village of Salamanca on the 1st day of June, 1886, and on that day they entered into a written contract, ¡Negus agreeing to erect a party wall of stone and brick upon the line of the lots, of sufficient size and dimensions to sustain a three story brick building. Krieger was to pay one-half of the cost of the wall, and it thereafter was to be owned jointly by the parties as a party wall. Negus built the wall and Krieger paid him one-half the cost thereof as agreed. Krieger thereafter conveyed his lot, including his interest in the party wall, to the defendants and they thereupon proceeded to erect upon the lot a three story brick building. They let the contract for constructing the building to one H. 0. Robinson. Robinson carried up the party wall some fifteen to eighteen feet higher than the wall built by Negus, and while thus engaged in building the wall a severe wind storm arose which caused the wall to fall upon the plaintiff’s building and seriously damaging it The amount of the plaintiff's damage was conceded by the defendants to be $1,156.49. At the close of the evidence the parties asked for a direction of a verdict in their favor respectively. The court denied the defendants’ motion, and directed a verdict for the plaintiff for the amount of his damages as stated. The defendants duly excepted to the refusal of the court to grant their motion and also to the direction of a verdict for the plaintiff.

The defendants’ counsel claims that a cause of action was not made against his clients, for the reason that the wall was being built by a contractor, and not by the defendants personally; that the relation of master and servant did not exist between the defendants and the contractor, and that, therefore, the contractor’s negligence could not be imputed to the defendants. This claim is made upon the assumption that the cause of action stated in the complaint is for the negligence of the defendants.

We do not so understand the complaint. The defendants’ right, to use the wall as they did is not questioned, but it is claimed that they built upon it at their own peril and became responsible for any damage which its use occasioned the plaintiff, without regard to the question of negligence in the manner of doing the work,, and so the rule of law is laid down in Brooks v. Curtis, 50 N. Y., 639, and in Schile v. Brokhahus, 80 id., 619.

Judge Rapallo says, in Brooks v. Curtis, supra, that either of the adjacent owners of a party wall has a right to increase the height thereof if it can be done without injury to the adjoining building and the wall is clearly of sufficient strength to safely bear the addition, but in making such addition he does it at his. peril, and if injury results he is liable for all damages. He must insure the safety of the operation. The party making the change is absolutely responsible for any damage which it occasions.

Our attention is called by the appellants’ counsel to the clause' in the contract requiring the plaintiff to build a party wall of sufficient strength to support a three story brick building, such as the defendants were building when the wall fell, as bearing upon the right of the plaintiff to complain of the addition made to the wall by the defendants.

We do not see that this clause cuts any figure in the case, for it is conceded the wall was of ample strength to sustain the addition made to it by the defendants, and it did not fall from any inherent, defect, but was blown over by a severe and unusual wind. The contract estopped the plaintiff from making the claim that the wall was overweighted, and fell for that reason, and that would seem to be the only effect of the clause mentioned.

The cause of action was established; the case was properly disposed of at the circuit. We find no reason for disturbing the verdict.

The judgment appealed from should be affirmed.

Dwight, P. J., Macomber and Haight, JJ„, concur.  