Scott v. McMillan — 16 N.Y. St. Rep. 795

Majority

p. 795

John. Scott v. Margaret McMillan.

(City Court of New York, Trail Term,

Filed June, 1888.)

Headnote

1. LIABILITY AS TO'PARTY'WALL.

The liability to pay for a- party wall is personal to the contracting party. ‘

2. Same ’

A -person who signs such a contract as “administratrix” is personally liable thereon;. -

3. Same

’ Where the contract calls I or an appraisement of the value of the wall,-

no liability to pay;attaches until the appraisement is made or the defend ant refuses-to arbitrate, .which operates as a waiver of the condition.

Trial by-thp-.court-without a- jury.

: J id Harrison, for plaintiff; Q. S, & j, H. Stitt, for defendant.' ‘

On the 15 th day of October, 1871, the plaintiff, and the defendant,, designated as “Margaret McMillan administratrix executed a contract in writing, under seal, reciting that tire- ¡plaintiff was the owner of a IjOt'On the north sid'e Forty-third street, between Ninth and Tenth avenues,, and ¡that the defendant was the owner of the premises-., immediately .adjoining on the westerly side thereof;- as.-'the :same' are divided , by a line two hundred feet east of the easterly side of Tenth, avenue, and running parallel thereto, from;.the "northerly side of Forty-third street, aforesaid to' fhecenter :line of'.the block between Forty-third and ¡Forty;fourth streets.." The contract further recites, that, the plaintiff was about to build a dwelling house-upon" his lot. so that the 'westerly wall was to be a party wall; and the parties, agree that in building the said dwelling house the plaintiff,may make use of the lot of the defendant for the purpose of .erecting a party wall sixteen, inches in w-id-th, so that,the 'wall;- muy. stand equally on the

p. 796

land of each; and it is provided that the defendant or her legal, representatives may use the said party wall on paying one-half of the value thereof, to be agreed upon between them, and in case of inability to agree, each party is to appoint a practical builder or mason, and the two persons so selected are to appraise the value of the wall, and in case of their failure to agree an umpire is to be called in to assist in determining the question of value aforesaid.

The contract also provides that if the defendant shall first erect a dwelling house on her lot the provisions aforesaid are in all respects to apply to and bind the plaintiff. The contract therefore contains mutual covenants, it is signed by the defendant in her own name without the suffix of the word “ Administratrix,” which for the purposes of the contract must be regarded as descriptio personae only as she is personally liable to the plaintiff on the principles laid down in Moran v. Risley, 1 City Ct. R., 229, and Ryan v. Rand, 9 St. R., 523. If the defendant had first built the party wall the plaintiff would, under the contract, have been liable to the defendant in the same manner that the defendant is sought to be made liable to him. The evidence shows that at the time of the execution of the contract the defendant had an estate of dower in the property which the contract declares belongs to her in fee, but this circumstance is of no consequence, as the contract is under seal, and the mutual covenants furnish ample consideration for the defendant’s promise, no matter how great or small her interest in the land amounted to. The defendant did not use the plaintiff’s wall personally, but the grantee of the defendant’s property did by the authority of his grant, make use of it. An effort was made by the plaintiff to collect the one-half of the value of the wall from the grantee, but the court of appeals held that the grantee was not hable, on the ground that the obligation was personal to the contracting parties. Scott v. McMillan, 76 N. Y., 141 .

The grant of the land (in which the defendant joined) in legal effect authorized the use of the wall by the grantee, and as the defendant put it out of the power of the plaintiff to enjoin the use thereof by the grantee, the use by the latter is to be regarded for legal purposes as a use thereof by the defendant within the meaning and intent of the covenant. Squires v. Pinkney, 13 St. R., 749. The grantee of the defendant used the party wall in 1876, and but for the stipulation as to appraising the value of the wall the obligation to pay would have become fixed then. But the agreement to arbitrate was in the nature of a condition precedent to the fixing of the liability, and no cause of action could accrue until the award was made (Delaware and Hudson Canal Company v. Pennsylvania Coal Company, 50 N. Y.,

p. 797

250 ; Wangler v. Swift, 90 N. Y., 38 ), unless the failure to arbitrate was owing to the refusal of the defendant to proceed with the arbitration (U. S. v. Robeson, 9 Peters, 319; Morse on Arbitration, 236; Benjamin on Sales, 1st Am. ed., sections 575, 576), the refusal to arbitrate being deemed equivalent to the unreasonable refusal of an architect to give a certificate of performance under a builder’s contract, proof of which fact entitles the builder to a recovery without the certificate. Bowery National Bank v. The Mayor, etc., 63 N. Y., 336 ; Nolan v. Whitney, 88 N. Y., 648 ; Whelen v. Boyd, 114 Penn. St., 228 . And it has been held that where the defendant denies the general right of the plaintiff to recover anything, and does not merely question the amount of damages, he cannot insist upon the covenant to arbitrate the amount or value as a defense. Lauman v. Young, 31 Penn. St., 306 .

The witness Howe, testified that on January 8, 1887, he called upon the defendant, told her he came on behalf of the plaintiff, and spoke of arbitrating in regard to the party wall according to the agreement, and offered to arbitrate on behalf of the plaintiff, and the defendant said she would have nothing to do with it, and referred the witness to her son, John McMillan. He thereupon served the sumons on her without a complaint. The defendant admits the service of the summons, but denies that she had any conversation as to arbitration. Howe is a disinterested witness, and his story is probable for the reason that, according to the defendant’s theory, she was not liable for the wall, and consequently would naturally decline to select arbitrators to determine what she was to pay, when, according to her understanding of her legal rights, she was under no obligation to pay anything.

It is hardly probable that Howe invented this story and deliberately testified to a falsehood. It is more reasonable to assume that the defendant has forgotten what occurred at the interview.

The liability of the defendant became fixed on the day of this interview (January 8, 1887). Upon the evidence I find, that the wall was sixteen inches thick up to the second story, and twelve inches thick above that portion of the building. Campbell, the plaintiff’s witness, testified that the wall was worth $1,669.10, but this was on the mistaken theory that the wall was sixteen inches thick up to the top of the building, so that this estimate of value can not be accepted. Geagan, the defendant’s witness, estimated the wall on the correct theory that it was only twelve inches thick above the second story, and he places the value at $1,029.92. For the reason stated, his estimate of value must be accepted. For one-half of this amount, to wit,

p. 798

$514.96, the defendant is liable, with interest 'thereon from the time of the refusal to arbitrate as aforesaid, amounting to $43.75, aggregating $558.71. The party wall agreement does.not specifically state that the wall was to be sixteen inches thick all the way up, and the parties appear to have accepted and used the wall without objection.- and it is rather late now that more than sixteen years have elapsed to claim that it was not technically as it should have been. Smith v. Alker,. 102 N. Y., 87 . The defendant is compelled to pay only for one-half of the wall she or her grantee took the benefit of, and that with interest only from the time of her refusal to arbitrate, the event that fixed her legal liability. It follows that the plaintiff is entitled to-judgment for $558.71, with costs.