Neher v. Bruckner ( 1898 )

RUMSEY, J.

Unless the case can be distinguished from Spero v. Shultz, 14 App. Div. 423, 43 N. Y. Supp. 1016, the decision of the trial term was undoubtedly correct. That was an action brought for specific performance of a contract for the exchange of teal property. The defendant objected that the house which the plaintiff agreed to convey had no wall on its westerly side, but the beams of the house were inserted in the wall of a building upon an adjoining lot, and depended upon that wall for support. This was not disputed. It appeared that the house had been erected for upwards of 30 years, and during all that time the beams had been supported in the same way. The wall in which the beams were inserted was not upon the lot which the plaintiff agreed to sell, nor was there any title in the plaintiff to the wall, or any agreement, written or oral, for its use. All that was shown by the plaintiff was that the beams had been there for more than 30 years, but the circumstances under which they were originally put there did not appear. The complaint was dismissed, and the judgment dismissing the complaint was affirmed in this court; it being held that the fact that the beams of the plaintiff’s building were inserted in the wall of an adjoining owner did not raise an inference that the plaintiff had acquired by adverse possession any right to such support. The inference was, in the absence of proof, that it was done by the permission or acquiescence of the adjoining owner, and, unless some right was proved, the title tendered was not marketable, and the plaintiff could not have specific performance. That case was discussed subsequently in Guarantee Co. v. Meyers, 32 App. Div. 41, 52 N. Y. Supp. 449, which was an appeal from an order requiring the purchaser at a foreclosure sale to complete his purchase. The property, which had been sold upon foreclosure, was described as a certain lot of land, with the buildings and improvements thereon. It appeared in that case that the wall of one of the buildings stood upon the land of an adjoining owner, but in spite of that the court at special term made an order requiring the purchaser to complete bis purchase. This order was reversed in the appellate division; the court holding that the purchaser was entitled to a good title to the land purchased, and the right to maintain the structures on the land as existing at the time of the purchase, but that until it appeared that the wall was a party wall, or that the owner of the house had acquired in some way the right of support for his building upon that wall, the purchaser could not be compelled to take the property; and because of the absence of that proof the order was reversed. So far from being opposed to the case of Spero v. Shultz, it is precisely in line with it, and the two decisions are in exact accord. '

Upon the authority of these two cases, therefore, the judgment must be affirmed, with costs. All concur.