Friedman v. Saul

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 , 21 N. Y. Supp. 848 ; McAdam, Landl. & 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. Easem. 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, was 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 pro

Upon complying with those conditions, the injunction will be va- . rated. Ten dollars costs to abide event. Ordered accordingly.