Opinion
Submitted May 28, 1926 —
Decided October 18, 1926.
On appeal from the Supreme Court, whose opinion by Judge Newman is reported in 3 N.J. Mis. R. 1189.
For the appellants, Weinberger Weinberger.
For the respondents, Feder Rinzler.
The judgment under review herein should be affirmed, for the reasons stated in the opinion by Judge Newman in the court below.
My vote for affirmance of the judgment is based on the proposition that by the contract the appellants were referred to the title as conveyed by earlier deeds and those deeds made express mention of the party wall rights, with knowledge of which appellants were accordingly charged. I am unwilling to give concurrence to the view expressed by the trial judge, that a party wall right is not an encumbrance, especially under modern conditions in this country leading every few years to the demolition of comparatively new buildings and the erection of others in their place.
Reference is made to a discussion of this point by Judge Hall, of the Supreme Court of Errors of Connecticut, in Ensign v. Colt, 75 Conn. 111; 52 Atl. Rep. 829 (at p. 831).
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 15.
For reversal — None.