¶1delivered the opinion of the Court:
¶2It is conceded that plaintiff’s wall was constructed in all respects as required for a party wall of a two-story dwelling. It is also conceded that defendant, under the building regulations, but for plaintiff’s wall, would have been required to-construct a 13-inch wall for his three-story dwelling. It therefore appears that, by the presence of plaintiff’s wall, defendant was only required to construct a 9-inch wall to the height of plaintiff’s wall.
¶3Undoubtedly, defendant could construct a wall independent *44of the party wall, and be relieved from liability to plaintiff. But is that what defendant did? There is testimony that he attached to the party wall in front; that he used the chimney in the party wall, extending it to sufficient height to accommodate his building, and that he rested 4 inches of the 13-inch portion of his wall on top of the party wall. If these facts be true, we think he so used the party wall as to entitle plaintiff to recover. On -these points there is some conflict in the evidence, but this was for the jury to reconcile. It therefore was error to direct a verdict.
¶4The judgment is reversed, with costs, and the cause is remanded for a new trial. Reversed and remanded.
¶5A motion for rehearing was denied May 25, 1918.
¶6A motion for a writ of error to the Supreme Court of the United States was denied May 25, 1918.