Popper v. Gans

131 N.Y.S. 609 | N.Y. Sup. Ct. | 1911

Newburger, J.

It appears that some years ago building's were erected upon the premises of the plaintiff as well as the defendant by a common owner, and that a wall divided the premises of the plaintiff and defendant. It is also conceded that the plaintiff or her predecessor has made no use of such wall for some time. While it is true that -the wall was used fpr many years as a common wall, yet the plaintiff and her predecessor having abandoned the use of same, and it being partly upon the premises occupied by the defendant, plaintiff cannot complain at this time that the same is used by the. defendant pursuant to directions of the tenement house department. There is no agreement upon record, nor is there any statement in any of the conveyances, 'that would lead this court’ to hold that this wall is a party wall. On the contrary, it is apparent to me that the same was simply used for the placing of beams therein, and when the plaintiff’s predecessor erected the building now owned by. the plaintiff he abandoned whatever rights he may have had in the wall. As to the contention of plaintiff that part of the wall was upon her land, that cannot 'be considered at this time, as this action is not brought to compel the defendant to remove the wall, but to restrain him from having the windows in • such wall. Plaintiff had an undoubted right to the use of the wall for the support of the beams of her own building as long as tire building continued. "Whatever easement plaintiff or her predecessor had in the wall undoubtedly ceased when same was abandoned. See Heartt v. Kruger, 121 N. Y. 386,

Judgment for defendant.