160 N.Y.S. 346 | N.Y. App. Div. | 1916
This action was tried in the City Court of the City of New York before a jury. With the consent of counsel the court submitted two questions for the determination of the jury, the counsel agreeing that after the jury had made its findings upon the two specific questions submitted to it, the court should direct a verdict subject to the opinion of the court. The court directed a verdict for the plaintiff for the sum of $297.50; that is, for $1,750 and interest less the amount of defendant’s counterclaim, subject .to the opinion of the court, and accordingly the jury rendered that verdict. The plaintiff was not satisfied with its verdict because the defendant had prevailed on its counterclaim. Accordingly the plaintiff moved to set aside the findings of the jury and the verdict directed thereon. This motion was denied and appropriate exceptions taken by the plaintiff. Thereafter, on motion of the plaintiff, the court ordered that the plaintiff’s exceptions be heard in the first instance by this court. Upon this hearing the plaintiff now moves that its exceptions be sustained, the defendant’s counterclaim be dismissed and judgment directed in favor of the plaintiff, with costs. On the other hand, the defendant moves that these exceptions be overruled and that this court order a judgment in its favor upon the verdict as directed by the trial court.
The action is to recover rent due December 1, 1915, under a
The defendant held under a lease dated December 15, 1906, from the James McCreery Bealty Corporation for a term of ten years and three months from February 1, 1908. By the terms of this lease the two Broadway stores of the building in question together with the “basement under said two stores” were demised to the defendant. Contiguous to the space directly under the stores there was a vault built underneath the sidewalk of Broadway and of Eleventh street. This vault extended from the building line to the curb line. It was constructed in 1868 by Lake & McCreery, at that time owners of the premises, under a license from the city. By mesne conveyances these premises passed from Lake & McCreery to the James McCreery Bealty Company, and the vault was used by the successive owners of the building or their tenants. The lease to the defendant contained a general covenant of quiet enjoyment with the provision that the covenant should be binding on and for the benefit of the parties thereto and their heirs, successors, legal representatives and assigns. After the entry of the defendant under the lease the James McCreery Corporation leased the entire building to Beuben Sadowsky and thereafter by lease dated August 5,1913, Sadowsky leased the entire building to the plaintiff, said lease going into effect February 1, 1914. On October 1, 1914, the city of New York took possession of a part of this vault space under Broadway for the purposes of the subway then being built along the line of Broadway. The space thus taken by the city was seventy-eight feet long and ten feet wide. Thus the defendant was partially evicted from the premises theretofore occupied by it.
The defendant claims that the vault space referred to was part of the premises demised under its lease from the James McCreery Bealty Corporation, and that the covenant of quiet enjoyment was broken when the city took possession of a part
There is no doubt that the lessor had power to lease the vault to the defendant. Its right to use the vault is recognized as property. It is “ an easement appurtenant to the plaintiff’s property, and in itself a species of property which the plaintiff may protect as fully as any other property. ” (Parish v. Baird, 160 N. Y. 302; New York Steam Co. v. Foundation Co., 195 id. 43; Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111, 114.) In our judgment the evidence before the court shows quite conclusively that the vault space referred to was demised under the lease to the defendant, and that as to the vault space taken by the city there was a breach of the convenant of quiet enjoyment. (See Hoffman v. Murray, Greenbaum, J., N. Y. L. J. March 27,1913; affd., without opinion, 159 App. Div. 904; 216 N. Y. 750.) At the trial an issue of fact was raised by the testimony of Mr. McOreery and of Mr. Frange. Mr. McOreery asserted that he told the defendant’s representatives at the time of signing the lease that he was not leasing any part of the vault space. On this point he was contradicted by Mr. Frange, the manager of the defendant. Accordingly the court, by stipulation of counsel, submitted the following questions to the jury:
1. Whether at or before the time of the signing of the lease between the McOreery Realty Corporation and defendant the president of the said McOreery Corporation, James Crawford McOreery, stated to the representatives of the defendant corporation that the vault space was not owned by the corporation and was not undertaken to be rented by it under the lease, but that the said vault space was occupied only under a permit from the city, and while the McOreery Oorporation would have no objection to the use of the vault space by the defendant, such occupancy and use would only be at the sufferance of the city ?
2. What damages per annum were suffered by the defendant as a result of the partial eviction ?
The jury answered the first question in the negative and the
The plaintiff claims that the defendant’s counterclaims disclose an action for money had and received, or for money overpaid, which money it may not now recover because they were voluntarily paid. In answer to this claim it is sufficient to say that the plaintiff has not pleaded voluntary payment, and furthermore on the face of the pleading the payments were not voluntary, but compulsory under the provisions of the lease.
The evidence produced is sufficient to show a partial eviction of defendant by paramount title and a breach of the covenant of quiet enjoyment. "It, therefore, remains to determine whether the defendant has stated a cause of action for damages for a breach of this covenant. In its answer the defendant alleges as a partial defense and by way of counterclaim the making of the various leases with their covenants, the partial eviction of the defendant from the vault space by the city under its paramount title, and the consequent decrease in the rental value of its leasehold to the extent of $250 for the month of December, 1915 (the month for the rent of which the action is brought). These allegations in effect make out a case of a breach of the covenant of quiet enjoyment for which damages may be recovered. The defendant then alleges that because of this reduction in the value of its leasehold it is entitled to an apportionment and abatement of the rent for December, 1915, to the extent of $250. In its second counterclaim defendant repeats the allegations of its first counterclaim, and then alleges that by reason of the facts so pleaded the rental value of its leasehold has been reduced to the extent of $250 for each of the months from October, 1914, to November, 1915, inclusive, but notwithstanding this fact it has paid its rent for each of - said months from October 1,1914, to November, 1915, inclusive. And then follows the statement that the defendant has thereby overpaid the plaintiff in. the sum of $3,500. It then demands judgment for $3,750 less $1,750 rent for December, 1915.
This allegation of overpayment in the second counterclaim
For these reasons, we think that the defendant has pleaded good counterclaims for damages for. a breach of the covenant of quiet enjoyment, and has sustained those counterclaims by competent evidence.
The plaintiff’s exceptions, therefore, should be overruled, with costs, and a judgment directed to be entered in accordance with the verdict as directed by the trial judge.
Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.
Exceptions overruled and judgment ordered to be entered in accordance with verdict as directed by the trial judge. Order to be settled on notice.