
    Valentine Hammann, App’lt, v. Richard Jordan, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    1, Party wall.
    A party wall agreement was entered into by which defendant agreed that if he should afterward make use of the wall to be erected by plaintiff he was to pay a certain sum. The latter built the wall and, with defendant’s knowledge, left spaces for 'windows and built in flues overreaching the centre of the wall by two inches. Upon defendant’s commencing to build, some years subsequently, he for the first time claimed that the leaving of the spaces and encroachment of the flue rendered it impossible for him to use the party wall, and refused to pay the amount agreed upon. Held, that as the work was done with defendant’s consent and approbation he could not afterwards set up as a defense the leaving of the spaces for the windows.
    2. Same—Evidence—Flues in tarty walls.
    It is proper to ask an architect in the city of New York whether it was not customary to build party walls with flues in them.
    3. Same—Encroachment in party wall oe flues.
    As to whether the encroachment of two inches over the line in inserting flues in a party wall was such a substantial failure to comply with the agreement that the court could not permit a deduction for the cost of curing the defect and grant judgment for the balance, was upon the evidence a question of fact which should have gone to the jury.
    
      4. Same—Evidence as to intention.
    It is proper to ask plaintiff whether he intended to have the wall built correctly with regard to the flues.
    Appeal from judgment of the New York superior court, general term, affirming judgment for defendant entered upon a direction of the court at trial term.
    
      Jacob F. Miller, for app’lt; A. Britton Havens, for resp’t.
    
      
       Reversing 36 St. Rep., 423.
    
   Peckham, J.

The plaintiff and defendant entered into an agreement for a party wall of the length of seventy-eight feet, more or less, between their premises in Charles street in the city of New York. The plaintiff was to build it, and the defendant, agreed that when he made use of it in the erection of any build ing on his premises he would pay plaintiff the sum of $751.16, being one-half the sum to be expended in its erection. The plaintiff built the wall and left some openings for windows therein and put in some flues. The flues, it was contended, overreached the centre of the wall by some two inches. The wall was twelve-inches wide.

As to the windows the plaintiff testified that the defendant saw the wall while plaintiff was building it, and saw the spaces left and which were intended for windows, and asked plaintiff about them. The plaintiff explained to him how he proposed to do the work, and the defendant was satisfied and said, “ If you do that, I having nothing to say.” He raised no objections thereafter until he commenced to build, which was some years subsequent to the completion of the wall, and he now claims that the leaving of the-spaces for the windows and the encroachment of two inches by means of the flues upon the defendant’s side of the wall, left it in such condition that he could not make substantially the same use of the wall that the plaintiff had, and that hence he was not bound to pay the amount stated in the agreement, or any sum . whatever.

If the testimony on the part of the plaintiff be true, we think an answer is made to the objection as to the openings for the windows. These were left with defendant’s consent and approbation, and he cannot afterwards change his mind and claim that the insertion of the windows was a violation of the agreement or that the result was such as to preclude him from substantially the same use of the wall as the plaintiff made.

The only other objection was the two inch encroachment upon defendant’s portion of the wall.

The defendant swore that be was stopped from building on the west or party wall side in consequence of the plaintiff’s flues coming out too far on that side, and that he could not put his beams into the wall opposite the flues without getting into them, and consequently the beams had not sufficient backing. In this he was probably mistaken, for his architect, who was a witness, testified that if he (the architect) had said anything during his testimony whereby he conveyed the impression that because of that space of two inches over the line of defendant he could not put the beams in, he did not wish to be so understood. They could not have put in the beams opposite the flues even if the flues had not encroached the two inches, because the law forbid the placing of beams within one foot of a flue. The architect also said that he could have put a chimney breast opposite the flues, and that as the wall was built, and assuming there had not been this encroachment, they would certainly have been obliged to build out the chimney breast just the same. In truth the defendant built a portion of wall and tied it to the wall in question by anchors, and has thus used it. These chimney breasts would have cost about $128 or $130.

.The plaintiff in this state of the case called an architect, and asked him if it was customary to build flues in party walls. This was objected to, and the court asked the plaintiff’s counsel what he desired to prove, and he said he wanted to show it was a proper thing to put a flue in a party 'wall. The objection was sustained and the plaintiff excepted. We think this was error. There is no rule in this state which requires a wall to be absolutely solid under all circumstances in order to be a party wall. We think it was propel’, therefore, to ask an architect in the city of ¡N"ew York whether it was not customary to build party walls with flues in them. Presumably he was familiar with the manner of erecting such walls in that city when, nothing but a party wall in terms was called for, and if it were a fact that it is customary in building them to put flues therein, their presence in this party wall, in the absence of some agreement to the contrary, would not be a violation of contract on the part of the plaintiff.

It is true that party walls are frequently erected under written agreements, which agreements may provide for flues or openings, or for absolutely solid walls. It is also true that the term “ party wall ” does not yet, as matter of law, and necessarily imply a solid structure, and, therefore, what the general custom is in ¡New York in regard to flues when party walls are erected may be some evidence of the meaning of the term as used in such an agreement as this. We. think it was competent, and should have been admitted. Smith v. Clews, 114 N. Y., 190; 23 St. Rep., 166.

In Fettretch v. Leamy, 9 Bos., 510, 525, the learned judge who there delivered the opinion of the court assumed that evidence that the term “ party wall ” had acquired by usage or custom in the city of New York any peculiar significance would be proper. The Pennsylvania cases cited by counsel are essentially different.

If proper to erect a party wall with flues therein, the next inquiry would be whether the encroachment of two inches already referred to was such a substantial failure to comply with the agreement that the court could not permit a deduction for the cost of curing the defect, and grant judgment for the balance.

Upon the evidence we think this was a question of fact. Even if the testimony were in substance uncontradicted as to the existence of the defect, the cost of curing it and the consequences resulting to the defendant, still in such a case as this we think it was proper to submit to the jury the question upon all the evidence whether there was or was not a Iona fide and substantial compliance with the requirements of the contract. It was not so clear as to make it a question of law. Glacius v. Black, 50 N. Y., 145; Phillip v. Gallant, 62 id., 256. The defect must not have been wilful dr substantial, as the plaintiff should not be permitted to recover where he has wilfully or substantially violated the contract. Glacius v. Black and Phillip v. Gallant, supra.

To show that this encroachment of two inches Was not wilful, the plaintiff was asked when on the stand whether he intended to have the wall built correctly with regard to the flues, and under the objection of the defendant the question was excluded. We think it was proper to ask the plaintiff that question. It covered the inquiry whether he intentionally encroached two inches, or at all, upon the line of the defendant in building the flues, and he should have been permitted to show that he did not.

The defendant urges that the evidence clearly shows the wall could not be used by defendant in substantially the same manner as by the plaintiff, and hence he claims the wall does not fulfill one of the essentials of a party wall, and that he ought not to be compelled to pay any portion of the expense of building it.

Some of defendant’s witnesses did say that the wall was not capable of substantially similar use by both parties. One witness said that there should have been a four inch partition line between the flues in order to give the defendant the same opportunity of using the wall as plaintiff had. If, however, the defendant could obtain such opportunity by the expenditure of the $128 or $130 for a chimney breast, as spoken of by the plaintiff’s witnesses, it would be for the jury to say whether that would not amount to an opportunity for a substantially similar use, and whether after deducting that sum the plaintiff ought to have judgment for the balance of the amount he agreed to pay upon using the wall. What amounts to a substantially similar use would under the evidence here be a question of fact, assuming it to be a condition precedent to a recovery at all that an opportunity for such substantially similar use should exist.

If the defendant in fact suffered any further damage by reason of this encroachment, in the way of being compelled to use some portion of his lot for an additional wall, which but for such encroachment he would not have been compelled to use, the amount of such damage it would be for the jury to determine, and that amount should be deducted from the recovery otherwise allowable. If the amount were of so substantial a nature as to cause the jury to conclude that the encroachment itself was, whether innocent or wilful, a substantial departure from the contract, then the verdict should be for the defendant so far as the plaintiff’s cause of action was concerned.

These matters can be properly submitted to a jury upon a new trial. We think the case should" not have been taken from the jury, and the judgment of nonsuit should, therefore, be reversed, and a new trial granted, with costs to abide the event.

All concur.  