193 A.D. 115 | N.Y. App. Div. | 1920
This is a suit in equity to compel the defendant to restore a party wall to its condition before it was interfered with by building operations conducted by the defendant, and to compel the defendant to remove certain encroachments made by the defendant upon the plaintiff’s premises and upon his easement in the party wall, and to compel the defendant to restore the flues in the party wall used by the plaintiff to their former condition and to carry them up in accordance with the provisions of subdivision 9 of section 392 of the Building Code, being chapter 5 of the Code of Ordinances of the City of New York (Cosby’s Code Ord. [Anno. 1920], p. 124), and to compel the defendant to restore the plaintiff’s building in so far as it has been damaged by the acts of the defendant to its former condition, and for damages caused by injuries to the plaintiff’s property and by annoyance, inconvenience and interference in the enjoyment thereof, and for such other
The learned trial court was of opinion that the changes made in the party wall and the use thereof made by the defendant were within the rights of the defendant as owner of one-half of the party wall, and that since the local officials, having jurisdiction in the premises, approved of the manner in which the plaintiff’s flues were carried above the party wall, it was immaterial whether or not the construction was in accordance with the provisions of the Building Code, and, upon that theory, denied all plaintiff’s demands for equitable relief and awarded judgment only for the amount of damages found to have been caused by direct injuries to his building during the building operations of the defendant.
At the time of the commencement of the action, and for twenty-six years before the trial, the plaintiff owned and occupied, as a family residence, the dwelling known as No. 238 West Seventy-first street, in the borough of Manhattan, city of New York, which covered the entire front of his lot, which is twenty feet in width, and his easterly and westerly boundary lines ran through the middle of a party wall. One Frayne, who at one time owned the plaintiff’s lot and a lot of similar dimensions toward the east, known as No. 236 West Seventy-first street, and eight lots of like dimensions on the west, erected thereon, simultaneously, ten three-story houses. After acquiring title, the plaintiff, in 1904, added another story to his house, carrying up the party wall therefor. The plaintiff’s house became then, and thereafter remained, a four-story house with stone box stoop; the first story being of cut stone and the front of the other three stories being brick with stone trimmings, with a basement and cellar and an extension in the rear three stories high, eleven by sixteen feet. The party wall, as thus built up by the plaintiff, extended fifty-five feet above the curb and was fifty-five feet in length. The defendant acquired title to the premises adjoining those of the plaintiff on the east and adjacent premises, and in the month of October or November, 1916, demolished the buildings thereon and proceeded to erect thereon a fourteen-story apartment hotel of steel and concrete construction. The party wall, through the middle of which
At four points in the party wall, two in front and two in the rear, the defendant tore out the party wall from the foundation up several feet in length horizontally, and at one point to the extent of eight feet, leaving the party wall only about three inches in thickness at those points and in some places less for the erection of four columns for the support of the westerly wall of the hotel and erected three reinforced concrete piers and columns two feet ten inches by three feet six inches in diameter, and one larger, all of which project from two to eight inches over the plaintiff’s line at the base and at all points, as I understand the evidence, to some extent over his line. In doing this the defendant in some instances broke through the party wall. The space around these piers and columns from which the party wall was thus removed was filled in with rough stone and cement and not bonded into the concrete piers. The piers and columns as thus constructed, in so far as they are in the party wall, cannot be said to form part of a party wall, for they are independent structures erected solely for the use and benefit of the defendant and are of no use or benefit to the plaintiff, and it is evident that if defendant’s building should be removed or wholly destroyed a complete party wall would not remain for the protection of the plaintiff’s building and for his enjoyment thereof. The acts of the defendant cannot be justified on the theory that the party wall had become dilapidated and that it merely repaired and rebuilt it; and, therefore, to the extent that the piers or columns are built over the plaintiff’s line, this Constitutes an invasion and permanent appropriation
The defendant also made cuts in the party wall opposite each story of the plaintiff’s dwelling of the dimensions of about eight feet horizontally and two feet vertically, reducing the thickness of the party wall at these points to about four inches and inserted therein water pipes which are used in flushing the toilets in the hotel directly opposite each floor of plaintiff’s house, and owing to the thinness of the party wall thus' remaining whenever one of such toilets in the hotel is used the flushometer is plainly audible in the plaintiff’s sitting room, and throughout his house and constitutes as to him a nuisance. This, too, is an unauthorized use of the party wall and manifestly the party wall as such has been seriously impaired thereby. It has been held that a co-owner of a party wall is not entitled to maintain therein windows which were originally constructed therein. (National Commercial Bank v. Gray, 71 Hun, 295, 300; De Baun v. Moore, 32 App. Div. 397; affd., on opinion below, 167 N. Y. 598.) If the use of a party wall for obtaining light, which in no, manner injures the co-owner, is not a proper use, surely such ripping into a party wall and placing therein water pipes which thus constitute an annoyance to the co-owner is not a proper use of such a wall.
There is evidence in the record tending to show that without the plaintiff’s consent the defendant closed up some of the flues in the party wall which were constructed for the use of the plaintiff’s premises and constructed another in place thereof, but on this point the evidence is not entirely clear, for it is not apparent how a new flue could be constructed in a party wall of this thickness without substantially taking down a whole section of the wall and it is not expressly stated how this was done. That could not be lawfully done without the plaintiff’s consent for he was entitled to use and enjoy the party wall as it was constructed. It is perfectly clear,
I am of opinion, therefore, that, in the particulars specified, the property rights and easements of the plaintiff have been invaded by the defendant and that on these facts the plaintiff, presumptively, is entitled to a mandatory injunction requiring the removal of the encroachments and the restoration of the party wall. His complaint, however, is addressed to the judicial discretion of a court of equity, and it may be that the defendant has acted in good faith and under the advice of counsel, although erroneous, and that the cost and expense to the defendant of executing such a judgment would be disproportionate to the depreciation in the market value of the plaintiff’s premises caused by such invasion of his property and of his easements, and if so it would be within the judicial
In this view it is unnecessary further to consider claims made in behalf of the appellant or to consider the respective claims of inadequacy and excessiveness of the damages awarded to the plaintiff and they should be left to be determined by the court on a new trial.
Toward the front of the building the defendant, in conformity with said section of the Building Code, was obliged to carry up another chimney. The chimney had two flues and the defendant carried it up in the wall of the hotel building and in so doing built out over the party wall a chimney breast of the width required for two flues. The plaintiff complains that this chimney breast should have been confined to the width necessary for one flue. There were negotiations between the parties with respect to this and there is a conflict in the testimony concerning the understanding arrived at by them which the trial court resolved in favor of the defendant. I think the plaintiff has no substantial grievance in this regard for in the opinion of the architect the wall above the plaintiff’s building presents a better appearance architecturally than if the chimney breast were narrower. If a new trial were not necessary on other grounds we would not, on this point, disturb the finding that the plaintiff consented to the construction as made.
Clarke, P. J., Dowling, Page and Greenbaum, JJ., concur.
Judgment reversed and a new trial ordered, with costs to plaintiff to abide the event.