33 N.Y.S. 984 | N.Y. Sup. Ct. | 1895
This suit seems to have been prosecuted with the idea that certain facts which ought to have been alleged and proved could be assumed by the court. The complaint alleges the execution of certain leases March 1,1869, by Adam T. Sackett to Thomas and John D. Crimmins, covering certain vacant lots on the southerly side of Sixtieth street, for a period of 21 years, with privileges of renewal for the further period of 21 years each; the erection of buildings thereon by the lessors; an assignment by John D. Crimmins to Thomas Crimmins of his interest therein, and that Sarah E., Clarence, Gertrude T., George E., Helen, T. William, and B. Lambert Sackett leased and conveyed to the plaintiff, Thomas Grim
The courts have been called upon to apply the general principle that the right of action belongs to the party who sustains the loss in a number of suits between lessees of real estate and elevated railroads, resulting in the establishment of certain rules: (1) When the lease is made subsequent to the construction of the elevated railroad, the exclusive right of action is in the landlord. This is because the rent is presumed to be based upon the reduced value of the property occasioned by the railroad which burdens the landlord with the loss. (2) The lessee has the right of action where the lease was made before the building of the road. In such case the lessee pays for the full use of the property, and is deprived of part of it, and therefore is the one injured. (3) Under a renewal lease made after, but in pursuance of, a lease given before the elevated railroad, and by which the parties are constrained in fixing the rent, terms, and conditions of the renewal lease, the right of action is in the lessee; and this is so because the two terms are treated as the outcome, in effect, of one continuous lease, commencing before the railroad, and therefore within the rule applicable to leases for a term of years made prior to the construction of the elevated railroad. Kernochan v. Railroad Co., 128 N. Y. 559, 29 N. E. 65; Kearney v. Railroad Co., 129 N. Y. 76, 29 N. E. 70; Witmark v. Railroad Co., 76 Hun, 302, 27 N. Y. Supp. 777.
Having these general rules in mind, we see that the lease of 1890,
The judgment should be reversed, and a new trial granted, with costs to appellants to abide the event. All concur.