357 East Seventy-Sixth St. Corp. v. Knickerbocker Ice Co.

• Decision Date: 21 November 1933
• Citation: 188 N.E. 158,263 N.Y. 63
• Parties: 357 EAST SEVENTY-SIXTH STREET CORPORATION v. KNICKERBOCKER ICE CO.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 63

188 N.E. 158

357 EAST SEVENTY-SIXTH STREET CORPORATION

v.KNICKERBOCKER ICE CO.

Court of Appeals of New York.

Nov. 21, 1933.

Action by the 357 East Seventy-Sixth Street Corporation against the Knickerbocker Ice Company. From a judgment of the Appellate Division (237 App. Div. 717, 262 N. Y. S. 705), reversing an order of the Special Term denying defendant's motion for judgment on the pleadings and granting the motion and dismissing the complaint, the plaintiff appeals.

Judgment affirmed.

LEHMAN and KELLOGG, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Sydney M. Heimann and Jacob I. Smith, both of New York City, for appellant.

Theo. J. Miller and John J. O'Brien, both of New York City, for respondent.

CROUCH, Judge.

The complaint alleges that plaintiff and defendant were the respective owners of adjacent premises, acquiring title through mesne conveyances from a common grantor who erected tenement buildings on both lots, with a party wall equally upon each. The plaintiff subsequently demolished the building on its premises, except the party wall, intending to erect a garage, which should use the party wall for support on that side. Before this was done, defendant, in order to erect an ice plant on its own premises, demolished its building and the entire party wall. Thereby, it is said, plaintiff was obliged to build an independent wall entirely on its own premises, although the party wall was suitable for continued use. In this action recovery is sought for the extra expense of building the independent wall, and for loss of rental space.

The easement in question here had its origin in implications arising out of the severance of a common ownership of two buildings supported by a common wall. The legal limits of the implications are broadly set by the conditions from which they arose. ‘When the title to these two lots was severed by their conveyance to separate persons, the purchaser of each lot is presumed to have contracted in reference to the condition of the property at the time. * * * The party-wall of the two buildings was an open and visible condition of the ownership of the property, and, in legal contemplation, its use as such, while the buildings stood, was an element which entered into the contract of the purchaser, and which charged the land with a servitude.’ Heartt v. Kruger, 121 N. Y. 386, 390,24 N. E. 841, 842,9 L. R. A. 135, 18 Am. St. Rep. 829.

In that case, upon the destruction of the adjoining buildings and the substantial destruction of the party wall, it was held that the easement ceased and that neither owner could require the other to permit the erection of a new party wall. The explicit basis for the decision was that ‘the easement was measured, in its extent and duration, by the existence of the necessity for it. When the necessity ceased, as it did by the destruction of the buildings and wall, the rights resulting from it ceased also.’ Page 392 of 121 N. Y.,24 N. E. 841, 843.

The rule of strict necessity which prevails in some jurisdictions (cf. Buss v. Dyer, 125 Mass. 287) has been in a measure relaxed in this state. Here it has been held that the right to use a party wall is not restricted like a prescriptive right to the exact limits of the previous user. Considerations of policy, perhaps, in the garb of presumed intention, have led to an interpretation permitting one owner to vary somewhat the original conditions without affecting the continuance of the easement. Brooks v. Curtis, 50 N. Y. 639, 10 Am. Rep. 545;Negus v. Becker, 143 N. Y. 303, 38 N. E. 290, 25 L. R. A. 667, 42 Am. St. Rep. 724; Varriale v. Brooklyn Edison Co., 252 N. Y. 222, 224, 169 N. E. 284. Nevertheless, a party wall easement is one of necessity, and, like others, stops short of mere convenience or advantage to either party. Heyman v. Biggs, 223 N. Y. 118, 119 N. E. 243;Root v. Wadhams, 107 N. Y. 384, 14 N. E. 281;Ogden v. Jennings, 62 N. Y. 526.

The essential consideration which impels the continuance of a party wall easement over the wishes of one of the property...