McDonnell v. Culver

Taloott, J.: This is an appeal from a judgment for the defendant, entered on the report of a referee. The action was brought to recover a portion of the cost of a party wall, in the village of Medina, upon the allegation that the plaintiff’s grantor erected the said party wall,one-half on her own land and one-half on the land of the defendant, and under the agreement that when the defendant used the said party wall she would pay for so much thereof as she should use. The fact was, that the said party wall was built by Adna Bowen, the husband of the plaintiff’s grantor, and upon her land with his own money, and the agreement in reference to the party wall was, as found by the referee, between the said Adna Bowen and the [157] defendant personally, and not an agreement made by or in behalf of Eunice Bowen, the owner of the land on which one-half the wall was built. Under these circumstances such an agreement has been held to be a mere personal covenant between the contracting parties. (Cole v. Hughes, 54 N. Y., 444.) The right under the contract constituted a mere chose in action, the right to which was in Adna Bowen and which had never been, in any manner, transferred to the plaintiifs in the action. In the case (Fowler v. Seaman, 40 N. Y., 592) referred to by the counsel for the plaintiffs it had been found, as a question of fact, that the husband was the agent of the wife in erecting the building, although the minority of the court held that there was no evidence to sustain the finding. In this case the finding of fact is the other way. Present — MulliN, P. J., Smith and Taloott, JJ. Judgment affirmed, with costs.