McLarney v. Pettigrew

3 E.D. Smith 111

Opinion

By the Court. Ingraham, First J.

The facts, as found by the referee, are that the plaintiff and the defendant, being owners of adjoining lots, agreed that if the plaintiff would give the defendant permission to insert the beams of his house which he was about erecting, into the wall of the plaintiff’s house, the defendant would pay to him $100 therefor. That the plaintiff did allow the said defendant to insert his beams in the wall and that the agreement was not in writing.

The referee reported for the plaintiff, and the defendant now asks to set aside the report on the ground that the contract was void under the statute of frauds.

There is nothing in the contract giving the defendant any interest in the land. Whenever the wall shall be removed, the plaintiff’s title to the land will remain unimpaired and the defendant would have no claim to rebuild the wall on the plaintiff’s lot or to use any other wall the plaintiff might build. (4 Sand. S. C. R. p. 480). It is a mere license to insert the beams in the present wall, without any interest in the land on which the wall stands. (6 Hill, 61; 3 Kent’s Com., 452; 2 Selden, 279.) A license of this- kind is not within the statute. The evidence also shows an execution of the agreement, and a promise to pay for the permission granted, if the papers were brought, and that the papers were so brought, but objected to by the defendant. In what particular, if any, they were objected to, does not appear. Under such a state of facts the defendant would be liable.

The judgment should be affirmed.