majority">Larremore, J.

[After stating the facts as above].— The principle is well established that either owner of a party wall may use it for the purpose for which it was erected and designed by the nature of its construction (Washburne on Easements, p. 583).

Some confusion of authority exists as to the extent to *193which a party wall may be used in the improvement of premises, and the cases of Eno v. Del Vecchio (4 Duer, 53; 6 Duer, 17), Brooks v. Curtis (50 N. Y. 639), Earl v. Beadleston (42 N. Y. Super. Ct. 294), are referred to as defining the liability of the defendant.

It is urged by the counsel for the appellant that any use of the party wall by either owner except for the purpose of repair and maintenance is a trespass; and the liability for such use' attaches irrespective of the question of negligence.

I do not so understand the reasoning in Brooks v. Curtis, and think it holds that in so far as an adjacent owner can use a party wall in the improvement of his own property without injury to the wall or the adjoining property there is no good reason -why he should not be permitted to do so. He does it at his peril, and is liable for any damages that may result from his actions.

This was not a case where the party undermined the wall, but simply used his own portion of it for the improvement of his premises, and if such use of it was lawful in purpose (and the jury have so found), he cannot be considered a trespasser; moreover the action was brought for negligence and not for a trespass.

All the questions of fact were fairly submitted to the jury, and the request to charge as presented by the case ryas properly overruled.

The exceptions should be overruled and judgment ordered for the defendant on the verdict, with costs.

J. F. Daly, J.

The plaintiff ¿xcepted to the refusal of the judge to charge that the party making a change in a party wall where not required for purposes of repair is absolutely liable for any damages it occasions. He also excepted to the instruction given the jury by the judge to the effect that the defendant was only liable in case the injury to the party wall was the necessary, direct and absolute consequence of the change which had been made. That if it was not, if the work was of such a description as could have been performed with entire safety to the party *194wall, having in itself no tendency to injure the wall, and the damage, if any, was caused solely by the negligence of the independent contractor Drummond in performing such work, then the defendant was not liable.

The jury by their verdict must have found that the work had no tendency to injure the wall, and could have been performed with perfect safety. The case differs therefore from Hughes v. Percival (L. R. 9 Q. B. Div. 441), relied upon by plaintiff. The rule of liability there enforced— that the defendant could not get rid of his responsibility by delegating the performance of the work to a third person—was applied because the work was hazardous in itself, as it comprised the undermining of the foundation of the opposite party wall between defendant’s house and that adjoining on the south, from which floor beams ran into plaintiff’s wall, and the latter was injured by the fall of the former. It was held that, the work being necessarily hazardous, the plaintiff was bound to use reasonable skill and care in the operations which exposed the party wall between his premises and plaintiff’s to that risk.

For any damage resulting from a change in the party Avail the person making such change is liable (Brooks v. Curtis, 50 N. Y. 639; Schile v. Brokhahus, 80 N. Y. 614). What is meant by a change in the party wall is illustrated by the cases cited. The height of the party wall is increased, or the foundations are altered or deepened, or the wall is taken doAvn and rebuilt. The wall is not damaged by a change in the position of the beams .unless such change necessarily affects the stability of the wall. Whether it does or not is a question of fact, and upon competent and sufficient evidence it is not error to submit the question to a jury. Where, as in this case, they find that the work was of such a description as would have been performed with entire safety to the wall, having in itself no tendency to injure the wall, Ave cannot say that the defendant Avas a trespasser or an insurer against negligence on the part of the independent contractor who performed the work.

*195The exceptions should be overruled and judgment ordered for defendant upon the verdict, with costs.

Exceptions overruled and judgment ordered for defendant, with costs.

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