#### Mary J. Bicak, Respondent, *v.*Josephine Runde, Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Party wall — liability for damages caused by removal of one of the houses — liability for incidental damages.

In the case of adjoining houses, the owner of one may alter the party wall between them if he does not improperly increase *359the burden of his neighbor-, or injure the wall; and in the absence of negligence he is not liable for incidental damages.

*No*recovery can be had for incidental, damages caused by the sagging of plaintiff’s house and the loosening of the plaster caused by the pounding of defendant’s workmen on the beams connecting and running through said house, in the absence of proof that such hammering w>as excessive.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of the Bronx, second district, rendered in favor of the plaintiff.

Wesselman & Kraus (B. L. Kraus, of counsel), for appellant.

McLoughlin & Martin (Edgar A. Martin, of counsel), for respondent.

Lehman, J.

The plaintiff and the defendant owned adjoining houses with a party wall between them. The houses were concededly about fifteen years old. The defendant, desiring to alter her house, cut it completely away from the party wall and moved it a few inches; she then strengthened the party wall, raised it three feet, and re-annexed her house to the altered party wall. While this work was being carried on some bricks from the party wall were driven through the lath and plaster of plaintiff’s house, causing some damage and very considerable additional damage was caused by the sagging of her house, necessitating considerable repairs. It is not very clear what caused this sagging; but plaintiff claims that, while a small part of the damage may have been caused by the removal of the lateral support accorded by her neighbor’s house, the main part of the damage was caused by the pounding of the defendant’s workmen on the beams connecting and running through her house. The plaintiff and her husband never saw the workmen at work, and would not testify that this pounding was excessive, but they heard the pounding and formed their own inference that this pounding caused the greater part of the damage. The trial justice has given the plaintiff *360judgment for practically the entire cost of repairs as testified to by plaintiff, in spite of the fact that there is considerable evidence that the house was in such poor condition that part of these repairs was in any event necessary. While there is no doubt that the plaintiff can recover'for the actual damage caused by the physical breaking in of the wall by the dislocation of bricks, this element of damage is concededly very small and the judgment must be reversed if the plaintiff is not entitled to recover for incidental damages such as sagging and loosening of plaster by the pounding on the beams.

The plaintiff’s own theory of the cause of action is unfortunately not disclosed by the pleadings. The complaint is oral: “ Damages to property.” The complaint is amplified by a written bill of particulars, which sets forth that the defendant altered her building, and that “ in the prosecution of the said work and in the alteration thereof did damage to the adjacent building owned by the plaintiff.” Nowhere does it appear that the plaintiff claims that the injuries were caused by defendant’s negligence, but only that damages were caused by defendant in the prosecution of the work of altering her building. Obviously, injuries caused without negligence by an owner changing his own house are not injuries for which the law’ allows damages in the absence of some unlawful act on the part of the owner, or an actual trespass upon his neighbor’s premises. Since the pleadings afford us no clue to the issues which the plaintiff desired to raise, we must examine the record to see whether any cause of action has been proven. The defendant has raised the height of the party wall three feet, and if, in so doing, she has weakened the party wall, she is responsible for her act regardless of any care in performing the work. The plaintiff has not, however, shown that the party wall has been weakened, and the defendant affirmatively shows that she has strengthened the wall. If the plaintiff claims that the defendant is liable for all incidental damages caused by the work of altering the party wall, she is clearly in error, for one owner is permitted to alter a party wall, if he does not improperly increase the burden or injure the wall *361itself, and in the absence of negligence he is not liable for incidental damages. Negus v. Becker, 143 N. Y. 303. If the damages were caused by sagging of the plaintiff’s house through the loss of lateral support caused by the removal of defendant’s house, the defendant is not liable, for she was under no obligation to give this support. The sole possible ground of recovery is that defendant has been guilty of either negligence or trespass. So far as the small damage caused by the dislocation of the bricks is concerned, the proof is sufficient to sustain a recovery either for negligence or trespass, but the larger part of the damages is not connected with these holes. They were, on plaintiff’s theory, caused by the hammering on the joists of defendant’s house. In the absence, however, of evidence that this hammering was excessive, there can be no recovery for this damage. The defendant had a right to alter her house if she did so without negligence. She shows that, in making the alterations, the workmen were obliged to cut the joists and then to hammer the small pieces remaining in the wall free from the wall. She shows that her workmen used care in the work, and even the plaintiff said that in “ doing the *necessary*work the men had done an awful lot of pounding on the beams.”

Since, therefore, upon no theory has the plaintiff shown any right to recover for more than the actual holes in the wall, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Page, J., concurs; ITotghkiss, J., concurs in result.

Judgment reversed, and new trial orderéd, with costs to appellant to abide event.