Majority
p. 644Ellis Potter, Administrator, &c., Plaintiff and Respondent, v. John C. White, Defendant and Appellant. (Before Hoffman, Pierrepont and Robertson, J. J.) Heard, June 5th; decided, June 16th, 1860.
Headnote
1. Where two adjoining dwelling houses are supported by a wall standing partly on the soil of each owner, which was erected as ar party wall, and has been used as such over twenty years, and one of such owners without the consent of the other removes it while in a sound condition and suitable and sufficient for the purpose for which it was erected, and erects a store on his lot and a new party wall, he is liable to the owner of the adjoining lot for any loss of rent caused, and the expense of all repairs made necessary by the removal of the old and the erection of the new party wall.[1]Appeal from a judgment entered in favor of the plaintiff on the report of a Referee.
The action was to recover damages for an alleged illegal removal of a party wall, of the buildings Nos. 143 and 145
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Chambers street, of which the plaintiff as administrator de bonis' non of Ellis Potter, deceased, held the former under a lease, and the defendant owned the latter. The cause being put at issue, it was referred to Charles P. Kirkland, Esq., to hear and determine all the issues.
He found the facts as follows:
1st. That in the month of May, 1854, the plaintiff was the owner of lot Ho. 143 Chambers street, in the city of Hew York, and the building thereon, and the defendant was the owner of the adjoining lot, Ho. 145, and the building thereon.
2d. That these buildings were dwelling houses, and that the wall between them, standing partly on each lot, was a party wall, and had been used and occupied as such by the said parties and their predecessors, for upwards of forty years.
3d. That the said party wall was, in said month of May, in a good and sound condition, and fully sufficient for the purposes for which it was erected, and for which it had been used up to that time.
4th. The said building of the plaintiff was in good repair and condition in the said month of May.
5th. That the said building of the defendant was then in a ruinous condition, and had been so since the taking down of the party wall on the westerly side of the defendant’s lot, which wall was taken down by the owner of the lot on the westerly side of the defendant’s one year previously, and the defendant had not repaired his building since the taking down of said party wall on his west side.
6th. That, by the progress of business and improvement in the city of Hew York, that part of Chambers street where these buildings were situated had then become a desirable location for the purposes of business, and that the said lot of the defendant could be used more advantageously and profitably for the purposes of business, than for a dwelling house; that in said month of May the defendant, for the purpose of erecting a large and valuable store on his said lot, took down and removed the said party wall.
7th. That said party wall was so taken down, and removed by the defendant, without any license, consent, or permission of the plaintiff.
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8th. That in the month of February preceding, the defendant gave the plaintiff verbal notice of his intention to take down said wall; and, on the 26th of April preceding, gave him a written notice to the same effect.
9th. That the said party wall, after removal of defendant’s building, and in the manner in which he was proceeding to erect his new building, would not have stood without being supported ; and the plaintiff took no steps towards supporting the same.
10th. That the defendant proceeded to erect a store on his said lot, with a sub-cellar, and laying the foundation sixteen or eighteen feet below the surface, and rebuilt said party wall of the thickness of sixteen inches; ten inches of the same being on his Own lot, and the remaining six inches on the plaintiff’s lot, the original wall having been twelve inches thick, being six inches on the lot of each party.
11th. That, in taking down and rebuilding said party wall, the defendant did no more damage to plaintiff’s building than would ordinarily arise from such an act.
12th. That in taking down and rebuilding said wall, the defendant injured the plaintiff’s building, and rendered it necessary to make repairs thereon, and rendered the same untenantable for one year, and caused the plaintiff the loss of the use and rent thereof for one year.
13th. That the portion of the party wall standing on the defendant’s lot being removed, the party wall would not have stood; and that the party wall standing upon the premises, when the defendant took down his building, would not have been of sufficient strength for the support of the new building erected by the defendant on his lot.
14th. That the expense of the repairs thus rendered necessary to the plaintiff’s building was $888.90, and that the plaintiff’s loss of rent amounted to $1,300.
Conclusions of Law.
1st. That the defendant had not the right, without the consent of the plaintiff, to take down or remove the party wall above mentioned.
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2d. That the defendant is liable to the plaintiff for the damages sustained by him, in consequence of such taking down .and removal.
3d. That these damages are the expenses of repairs and loss of rent above stated, and that the plaintiff is entitled to recover those sums, with interest thereon, from the 1st of May, 1855.
Exceptions were duly taken sufficient to raise all the points taken by the defendant.
Judgment having been duly entered, the present appeal was taken therefrom.
W. Hutchins, for the appellant.
A. P. Man, for the respondent.
We are satisfied upon the evidence, with the conclusions of the Referee as to the character of the party wall, its sound condition and sufficiency for the purposes for which it was erected, and had been used; as also in regard to the ruinous condition of the defendant’s building, and the inducements leading him to erect a new and profitable store upon his ground. The building of the plaintiff was also in good repair.
The evidence is not enough to overrule the conclusion of the Referee, that the party wall was not removed with the license or consent of the plaintiff.
Then upon such a state of facts the case of Eno v. Delvecchio, ( 4 Duer, 53 ; 6 id., 17,) is decisive. The plaintiff was entitled to be indemnified to the full extent of the injury he had sustained. Here was a party wall, built partially on the ground of each owner, used as such for more than twenty years, and in a sound and serviceable condition. Neither party could remove it, or so deal with it as to render it an insufficient support for the building of the other, without his consent.
The remaining question is as to the amount of the damage. The amount allowed for the repairs is fully warranted by the evidence. And upon the whole, we do not see sufficient reason to change the conclusion of the Referee as to the loss of a year’s rent.
The judgment must be affirmed, with costs.
Affirmed accordingly.