Majority
p. 249Valentine Hamman, Resp’t, v. Richard Jordan, App’lt. (New York Superior Court, General Term, Filed March 4, 1890.)
Headnote
1. Party wall—Characteristics or.Capability of substantially similar use by each of the adjoining owners is
p. 250
an essential characteristic of a party wall in the absence of a special agreement or controlling custom to the contrary.
2. Saids.
Unless a wall of that character has been erected, the agreement cannot be enforced.
Motiou for a new trial on exceptions ordered to be heard at general term. The case was heard at trial term and a verdict-directed for plaintiff.
Action to recover $741.16, the contract ¡nice for the half of a-party wall situated on the lands of the parties hereto.
Jacob F. Miller, for resp’t; A. Britton Havens, for app'lt.
There is no preponderance of evidence that the wall built by the plaintiff is such a one as is referred to in the agreement. The evidence rather tends to show that it is not, in that it seems the wall is not capable of substantially similar use by each of the adjoining owners. This capability is an essential characteristic of a party'wall in the absence of a special agreement or controlling custom providing otherwise.
The defendant agreed to pay upon the use of the party wall referred to in the agreement. If this wall has not been erected the plaintiff cannot recover.
The direction of a verdict for the plaintiff was error. The exception thereto must be sustained and a new trial ordered, with costs to abide the event.
Truax, J., concurs.