McCarthy v. Mutual Relief Ass'n

Hayne, C. This was an action for the recovery of damages for an injury to the face or end of a party-wall, and to recover possession of the plaintiff’s half thereof. The trial court gave judgment in favor of the plaintiff [585]for the recovery of the possession of half of the wall and for thirty dollars damages; and the defendant appeals from the judgment, and from an order denying a new trial.

The parties to the suit, being the owners of adjoining lots, and being each about to erect a building on their respective lots, made a written agreement for a party-wall, which agreement is set out in the findings. The wall was accordingly constructed. The dispute was as to how the face or end of the wall should be finished. It appears that the plans for the defendant’s building were originally drawn upon the idea that it was to stand wholly upon the defendant’s own lot; and the wall was to be only thirteen inches thick. With this view, the pilasters or coverings for the face of the walls were ordered thirteen inches wide. The party-wall, however, was seventeen inches wide for the first two stories. And when the thirteen-inch pilaster came to be applied to the seventeen-inch wall of the first story, it looked so nut of proportion that the plaintiff himself suggested that a wider one be made for the first story, and promised to pay, and did pay, the difference in the price of that pilaster. The plaintiff then went on with the construction of his building, and made his upper story to correspond with his opposite wall, which was also a party-wall with another building. In order to effect such correspondence, he made the pilaster for his upper story to cover only his half of the party-wall between his building and that of the defendant.

The defendant, however, whose building was to be higher than that of the plaintiff, was by no means satisfied with this arrangement. Its officers remonstrated with the plaintiff, who at first said that he could not control his contractor, but that, if the defendant’s officers should not be satisfied with the appearance of the wall as finished by his contractor, they could tear down his finish, and make it to suit themselves. The plaintiff’s contractor [586]thereupon completed the wall as he had commenced it. And the plaintiff thereupon recalled his permission to the defendant to change it. The latter, however, “directed the brick-masons to carry up the brick pilaster for the second and third stories to correspond with the new iron pilaster (of the first), and for the same width, and corbeled it out to form panels on the face of the pilaster to correspond with the others.” And in order to do this, the plaintiff’s finish on his half of the wall had to be taken down, which was done by the defendant’s workmen. The plaintiff complains that the result is, that his two walls do not correspond, and that his building “looks like a cow with one horn.”