Statement of the Case. MARGARET HEARTT, PLAINTIFF v. ADOLPH Party wall, one mode of establishing easement of, terminated by destruction of buildings. Where the owner of two houses conveys one (retaining the other), making the boundary of the one conveyed the centre line of the wall between the two, that wall becomes a party wall. Where the buildings which have for their common support a party wall are entirely destroyed, the party wall itself being so far destroyed that there is nothing left of it but the foundation and two feet of wall on that foundation, the easement of the owners of the land on which the party wall stood in the lands of each other for the purposes of a party wall is thereby terminated. Before FREEDMAN and INGRAHAM, JJ. Decided January 7, 1889. Application by plaintiff for judgment on the verdict of the jury in favor of the plaintiff by direction of the court, subject to the opinion of the court at general term. One Burchell, being the owner of two adjoining lots 503 and 505 West Fifty-fourth street, 503 being the most easterly lot, built on them two houses each five stories high, having a party wall between them twelve inches thick. He sold both lots with the houses erected thereon to one Falk who, on April 20, 1875, gave back to Burchell a mortgage on 503. This mortgage was foreclosed and the defendant on July 2, 1887, derived title to this lot from the purchaser at the foreclosure sale by various mesne conveyances. Falk, also, on April 23, 1875, mortgaged lot 505 to Rachel Collins. This mortgage was also foreclosed, and the plaintiff on August 25, 1879, derived title to this Plaintiff's points. lot by deed from the purchaser at the foreclosure sale. The mortgage on 503 was recorded before that on 505. The description in the mortgage on, and in the various deeds of, lot 503 gave the westerly boundary as running "partly through the centre of a party wall." The description in the mortgage on, and the deed of lot 505 contained no reference to a party wall; but the easterly boundary line as given would run partly through the centre of a party wall. In 1887, the buildings on both lots were destroyed by fire, as was also the party wall between them except that its foundation up to the curb and two feet of the wall on this foundation were left standing. After this defendant built on his lot a two-story building, rebuilding the party wall twelve inches thick to the height of his new building. This action is brought to recover the strip of land 50 feet 2 inches in length by 5 inches in width on the north and 5 inches on the south covered by the westerly portion of the new brick partition wall. James J. Thomson, attorney and of counsel for plaintiff, on the questions considered in the opinion, argued : The only question is one of law. It is insisted by plaintiff that the party wall between the houses 503 and 505 had so far been destroyed as to cease to be a party wall. There is no doubt that the wall was down to the top of the foundation wall and that the five-story houses that it separated and supported were utterly destroyed. So far, then, the party wall had served the purposes for which it had been erected. The question then arises, does the law imply a right to re-erect a party wall after the destruction of the wall down to the foundation wall and the total destruction of the houses which it supported and separated? This Court in Sherred v. Cisco, 4 Sand. (Super. Ct.) 480, decides" that where two owners of adjoining city Defendant's points. lots unite in building two stores with a party wall, we have no right to infer from that act an agreement binding upon them, their heirs and assigns to the end of time to erect another like party wall." p. 488.-But says the learned counsel for this defendant, the wall has not been destroyed; there remain the yellow pine timber foundation and eight feet of foundation wall, that says he gives the defendant the right to erect a new wall to separate new structures of new height, etc., etc. This Court answers this claim in Sherred v. Cisco, p. 485. "The stone foundation that remained does not alter the matter; either party could remove so much of it as rested on his ground with the rubbish on his lot on preparing to rebuild. . . . . Neither was under any obligation to rebuild upon his lot or to suffer the other party to place part of a division wall upon it." Speaking of the rights of parties in a party wall, the Court of Appeals, in Partridge v. Gilbert, 15 N. Y. 601, says of a similar right of support: "This right existed as long as the wall continued to be sufficient for that purpose, and the respective buildings remained in a condition to need and to enjoy that support." John Hardy, attorney and of counsel for defendant, on the questions considered in the opinion, argued :— I. The wall is a party wall. Webster v. Stevens, 5 Duer, 553; Eno v. Del Vecchio, 6 Ib. 17; Partridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 Ib. 639. II. It did not cease to be a party wall because it became dilapidated. Brondage v. Warner, 2 Hill, 145; Schile r. Brokhahus, 80 N. Y. 614. Campbell v. Mesier, 4 Johns. Ch. 334, and 6 Ib. 21. This is not a case where the old wall is destroyed, and in which the parties are remitted to their original condition, such as Judge SANFORD Supposed might sometimes occur. Sherred v. Cisco, 4 Sand. 488, and referred to in Partridge v. Gilbert, 15 N. Y. 601, for the proof showed that it would have cost the plaintiff $200 to remit the lots to their original condi Opinion of the Court, by INGRAHAM, J. tion. The entire foundation wall in this case was intact, and so substantial that the Building Department approved of it, and allowed the wall to be continued up. Either owner had the right to increase the height of the wall. Brooks v. Curtis, 50 N. Y. 639. Rebuilding in case of necessity for so thorough a work is repairing, within the proper meaning of that term. Partridge v. Gilbert, 15 N. Y. 608. BY THE COURT.-INGRAHAM, J. This is an action of ejectment to recover possession of a strip of land covered by a portion of a wall erected by the defendant. In 1874 one Burchell was the owner of both plaintiff's and defendant's lots. He erected a building on each lot with a party wall between them twelve inches in width. Subsequently he sold both buildings to one Falk, and took back a mortgage on the house and lot now owned by defendant to secure the sum of $7,000, which mortgage describes the westerly boundary of the premises as "running southerly and paralleled with Tenth avenue and partly through the centre of a party wall fifty feet and five inches to the northerly side of 54th street." The defendant claimed title to the property through a Referee's deed on the foreclosure of this mortgage. The buildings on both lots were destroyed by fire on the 27th or 28th of May, 1887. The party wall was destroyed, except that the foundation up to the level of the curb and about two feet of the wall on this foundation left, was left standing. The other walls of both buildings were all destroyed down to the foundation walls. This conveyance of one of the houses by the owner of both, had the effect of making this wall between the two buildings a party wall. See Brooks v. Curtis, 50 N. Y. 642, where it was held, that where the centre line of the wall between two houses is by the deed of one made. the boundary line of the lot conveyed, the wall becomes VOL. XXIV.-25 Opinion of the Court, by INGRAHAM, J. a party wall; and that although the land covered by the party wall remains the several property of the owners of each half, yet the title of each owner is qualified by the easement to which the other is entitled. The controlling question in this case is the extent and duration of this easement. The precise question presented does not appear to have been determined in this state; but a review of the cases in which the easement granted by such a conveyance has been considered will be useful in determining the question here presented. The first case which it is important to notice is the case of Campbell v. Mesier, 4 Johns. Ch. 334. It does not appear in the report of that case whether the easement there considered had been created by express grant, or by implication, or whether the wall and the land on which it was built was owned by the parties as tenants in common, or in severalty, subject to an easement. Chancellor KENT held, "that where one of the buildings had become old and ruinous, the party wall in a state of ruin and decay, and dangerous and utterly incapable of being repaired, and that it was impossible for the owner to rebuild on his lot without taking down the whole party wall to its foundation, the owner had the right to rebuild the party wall, and that the owner of the other house was liable to contribute to the expense of rebuilding the party wall, and that the Court of Chancery would enforce this contribution." The next case to which attention is called, is Sherred v. Cisco, 4 Sand. 485. In that case the plaintiff and defendant owned adjoining buildings supported by a party wall resting on a stone foundation, one half of which was on the land of the plaintiff and the other on the land of the defendant. Both of the buildings were destroyed by fire and nothing left of the party wall except the stone foundation. Immediately after the fire plaintiff proceeded to rebuild on his lot. The wall on the side of the defendant's lot was built on the foundations of the former wall. Subsequently defendant built on his |