Varriale v. Brooklyn Edison Co., 225 A.D. 699

Varriale v. Brooklyn Edison Co.

225 A.D. 699 | N.Y. App. Div. | 1928

Judgment reversed upon the law and the facts, with costs, and complaint *700dismissed, with costs. We are of opinion that defendant, under its lease from the owner of No. 229 South Fourth street, had a right to use the party wall between Nos. 227 and 229 as a rest or foundation for its advertising sign, which had been there for at least five years. The erection and maintenance of this sign with the foundation upon the party wall was a reasonable use of the party wall. There was no proof of any damage by reason of such use, nor of any interference with the rights of plaintiff in and to the party wall. (Brooks v. Curtis, 50 N. Y. 639.) This holding is not meant to preclude plaintiff from the right to make a reasonable use of said party wall for her own purposes, and to the extent that the structure might interfere with such use the plaintiff might have appropriate relief in equity. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and appropriate conclusions will be made. Lazansky, P. J., Rich and Carswell, JJ., concur; Kapper and Hagarty, JJ., dissent, being of opinion that the right of the owner of the adjoining property is that of ordinary ownership in a party wall, to be used for party wall purposes; and that without the consent of the plaintiff, the co-owner, the defendant could not lease the use of the party wall to a third person for advertising sign purposes. Settle order on notice.