97 N.Y.S. 925 | N.Y. App. Div. | 1906
' ’The"’ defendant owns what is termed a two-family house, that is, one constructed in such a way as to be occupied by two families; The plaintiff leased the basement and parlor floors, and the defendant occupies the floors kbove. Immediately below the floors leased to the plaintiff is: the cellar, in which is placed a hot-air furnace which supplies heat to all of the rooms, with the possible exception of plaintiff’s kitchen. The ‘fürnáce was placed in the cellar when the building1 was constructed, and since that time it has been used , for the- purpose of heating the different rooms in the house, and in fact is the only.way at present provided for .heating such rooms. The plaintiff went into possession of the rooms occupied by him on the '3d of LTovember, 1904, under an agreement which.provided '■ that the -heat'was to be furnished by the defendant. This agreement was informal, and on the second of December following (heat in the meantime. having been furnished) it was supplemented by a formal lease in which nothing was said, about heat, but, nevertheless, defendant continued to furnish it at her own expense to the 11th .of November, 1905, when she refused any longer to do so, and . also refused to allow the plaintiff to use the furnace, he himself furnishing his own fuel. Thereupon this action was brought to procure, among other things, a judgment enjoining the defendant from interfering with the plaintiff in tlie use of the furnace foi’ heating the premises occupied by him during the term of his lease. •He obtained an injunction granting him this relief pending the return of an order to show cause why the same should not be continued during the pendency of the action. 'Upon the- return of the . order, the injunction was vacated and plaintiff appeals.
I. am of the opinion that the court erred in refusing to continue the injunction during the pendency of the action. The plaintiff has no adequate remedy at law, and the action being in equity, he ought to have the injunction during its pendency. Otherwise if the léase expires before the trial, he will be unable .to obtain any equitable relief whatever'.; The defendant leased to the plaintiff'“ the basement and parlor floors * * . * with the appurtenances.” Tlie furnace was an appurtenance-to .the premises leased, just as much as was access to the rooms. Everything .is included within the 1 word “appurtenances ” which is necessary and essential to the bene
When one leases rooms in a building, this carries with it not only the right of access, but the right to heat them if necessary; and if the only means provided by which the rooms can be heated be a. furnace in the cellar, then the right to use such furnace for that purpose. To hold otherwise would enable the lessor, at the expense of the lessee, to destroy, either in whole or in part, the subject-matter of the lease by depriving the lessee of the beneficial use and enjoyment of the thing leased.
Upon the undisputed facts and under the authority of Doyle v. Lord (supra) I think the injunction should have been continued during the pendency of the action.
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion for an injunction granted to the extent, of enjoining the defendant, during the term of plaintiff’s lease, from.interfering with him in the use of the furnace, including putting or keeping the same in repair, in so far as such use may be necessary for furnishing heat to the rooms which he occupies. '
O’Bbien, P. J., Ingbaham, Clabke and Houghton, J.T., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion, Order filed.