There is no preponderance of evidence that the wall built by the plaintiff is such a one as is referred to in the agreement. The evidence rather tends to show that it is not, in that it seems the wall is not capable of substantially similar use by each of the adjoining owners. This capability is an essential characteristic of a party'wall in the absence of a special agreement or controlling custom providing otherwise.
The defendant agreed to pay upon the use of the party wall referred to in the agreement. If this wall has not been erected the plaintiff cannot recover.
The direction of a verdict for the plaintiff was error. The exception thereto must be sustained and a new trial ordered, with costs to abide the event.
Truax, J., concurs.