
    Simon Batt, Respondent, v. Aelaine Kelly, Appellant.
    . Right to use flues in a party wall.
    
    'Where two buildings are separated by a party wall, the division line being the center of the wail, the fact that flues built in the party wall for the exclusive use of one of the buildings extend two inches beyond the center of the wall, does not entitle the owner of the other building, for which independent flues have been provided in the other wall of his building, to cut into and use the flues in the party wall.
    Appeal by the defendant, Aelaine Kelly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the •clerk of the county of Kings on the 26th day of June, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      James T. O’Eeill, for the appellant.
    
      Edward Kemfmann, for the respondent.
   Hirschberg, J.:

The plaintiff is the owner and occupant of the premises ¡No. 853 Lafayette avenue in the borough of Brooklyn, Which he purchased •on or about August 20, 1891, from one Alexander McKnight, at that time the 'owner of the property and also of the then vacant lot on the west, now covered by the building ¡No. 851 Lafayette avenue. After plaintiff’s purchase Mr. McKnight erected the building ¡No. •851 Lafayette avenue and sold it to the defendant, the present occupant. There is a twelve-inch party wall between the two buildings, and the dividing line is through the center of the wall. Certain flues were built in this party wall at the time the plaintiff’s building was erected, and it is evident from the testimony in the •case that they were built for the use of that building, although they extend westerly two inches beyond the center line. When the •defendant’s building was erected the chimneys and flues for the use of that building were constructed in and upon the westerly wall. The defendant has recently cut into the flues in the party wall, or into some of them, and connected stoves therewith, and by such use of these flues has filled the plaintiff’s premises with smoke. The judgment appealed from enjoins this use by the defendant of the flues in the party wall.

The defendant’s contention is that inasmuch as the- flues as constructed extend two inches into her half of the party wall, she may lawfully connect with them, and the case of Daly v. Grimley (49 How. Pr. 520) is cited in support of such contention. That was an Equity Term decision, and there is nothing in the case as reported which indicates anything more than a recognition of the undoubted principle that where flues are constructed in a party wall for the common use of the contiguous buildings and accessible to either, they may be used by either. The case was decided on the authority of Brooks v. Curtis (50 N. Y. 639), which related only to the right of one of the common owners to increase the height of a party wall, the court holding that he could do so at his own peril, he being liable for any injury done to the adjoining property. That case was distinguished in Negus v. Becker (143 N. Y. 303), and the rule was enunciated that while a party wall is intended for the mutual convenience and benefit of the adjoining property owners, its use by either was subject to the restriction that it should not be detrimental to the other. In De Baun v. Moore (32 App. Div. 397) the flues appear to have been built in the party wall :for the use of both houses, and this-court held that the defendant could not lawfully fill up the flues which were, and had always'been, in use by the plaintiff. What was said in the opinion of Mr. Justice Cullen to the effect (p. 399) that under the custom prevalent in this com-, munity the easement of a party wall extends to the maintenance of chimney flues therein,” is to be read in connection only with the facts of that case, and cannot be extended so as to confer an easement upon one owner to use flues designed for the other owner where independent provision has been made for the former, and the use. would be detrimental to the latter’s enjoyment of his unquestioned rights.

The deeds of the respective parties are not printed in the record, but it seems to be conceded that in the deed to the plaintiff the grantor reserved no easement in the flues then constructed, and if that be so the decision and reasoning in the case of Ingals v. Plam ondon (75 Ill. 118) would be applicable; but the determination of this appeal may well be rested upon the point first considered.

The facts present a proper case for injunctive relief, and the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  