
    Katharine Friedman, Plaintiff, v. Charles Saul, Defendant.
    (Supreme Court, New York Special Term,
    March, 1900.)
    1. Party wall — Removal.
    A party wall can be removed only where it has become ruinous, or where either building abutting thereon has become so unsafe that its removal would endanger the entire wall. A removal must be made upon due notice and its necessity must be established by experts.
    2. Same — Injunction.
    Where an owner had procured an injunction restraining such a removal by his neighbor and it was not clear that the party wall was ruinous before anything had been done towards removing it, the court vacated the injunction upon condition that the defendant should protect the plaintiff’s building and give her a bond for any damage she might sustain by the removal.
    Motion to vacate an injunction.
    Adolph Cohen, for plaintiff.
    A. Stem, for defendant.
   Leventbitt, J.

It was in effect conceded on the argument, what appears presumptively from the papers, that the wall in question is a party-wall. Rogers v. Sinsheimer, 50 N. Y. 646, 648. The defendant could remove it, therefore, only if the wall had become ruinous, or if either building had become dilapidated or unsafe so that the removal thereof would endanger the entire wall. Partridge v. Lyon, 67 Hun, 29; McAdam Land. & Ten. (2d ed.) 559. In such cases the necessity for reparation must be established by men skilled in the business, and can only be made on due previous notice. Washb. Ease. 612; Campbell v. Mesier, 4 Johns. Ch. 334. The defendant seeks to bring himself within these principles by alleging a proper notice to the plaintiff and by presenting affidavits of various persons tending to show that his building as well as the party-wall were in a ruinous and dilapidated condition. The allegations are often evasive and inconclusive and not sufficiently specific either as to time or locality. It is not quite clear whether the present alleged ruinous condition was not to some extent produced by the partial removal of the wall. At the same time the plaintiff has not seen fit to interpose answering affidavits, so that the defendant’s allegations are practically unchallenged. Should these be established on the trial, according to their most favorable interpretation, the defendant could prevail; but the facts not being fully developed in the papers, the outcome of the trial remains quite uncertain. The burden is on the defendant, and, in the absence of very clear proof of the necessary facts, he should fully protect the plaintiff. As the latter is, according to her complaint, able to specify her damage, I am of the opinion that the rights and interests of all parties will best be subserved by directing the defendant to carry out his expressed willingness of protecting the plaintiff’s building and by giving a bond in the sum of $5,000 to secure the payment to her of any damage which she may sustain by reason of the removal of the wall for which the defendant may be liable. Wynkoop v. Van Beuren, 33 N. Y. St. Repr. 994. Upon complying with those conditions the injunction will be vacated, ten dollars costs to abide event.

Ordered accordingly.  