Biordi v. Yanosevich

• Decision Date: 12 July 1928
• Docket Number: 619-1928
• Citation: 93 Pa.Super. 578
• Parties: Biordi v. Yanosevich, Appellant
• Court: Pennsylvania Superior Court

93 Pa.Super. 578

Biordi v. Yanosevich, Appellant

No. 619-1928

Superior Court of Pennsylvania

July 12, 1928

Argued April 18, 1928

Appeal by defendant from decree of C. P., Lawrence County, Sitting in Equity, No. 4-1926, in the case of John Biordi and Frank Biordi v. Isadore Yanosevich.

Petition for an injunction. Before Hildebrand, P. J.

The facts are stated in the opinion of the Superior Court.

The court granted an injunction. Defendant appealed.

Error assigned, was among others, the decree of the court.

Affirmed.

J Norman Martin, of Martin & Martin, for appellant, cited Evans v. Edelstein, 276 Pa. 516; White v. Smith, 33 Pa. 186; 12 A. & E. Enc. of Law 570; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492; Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250; Berridge v. Glassey, 112 Pa. 442; Book v. Wire Nail Co., 151 Pa. 499; Catawissi R. R. Co. v. P. & R. R. Y. Co., 255 Pa. 269.

William McElwee, Jr., for appellee, cited: Silverthorn v. Silverthorn, 276 Pa. 579; Yeatts & Troth v. Doyle, 190 Pa. 129; Kinter v. Com. T.R. Co., 274 Pa. 436; Wissler v. Hershey, 23 Pa. 333; Hacke's Appeal, 101 Pa. 245.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

TREXLER, J.

John Biordi and Frank Biordi leased unto Isadore Yanosevich " (that certain room, together with the cellar thereunder except so much of the same cellar as the Majestic Lunch shall have the privilege of using when the show is closed, known as the Majestic Theater, situated at Nos. 506 and 508 Lawrence Avenue, Ellwood City, Lawrence County, Pennsylvania, and in which said theater is now located.)"

The Majestic Theater occupied the major portion of the first floor of the property and had an entrance from Lawrence Avenue. On one side of the entrance to the theater room, there was a small room known as the Majestic Shoe Shine and on the other side of the entrance was a small room known as the Majestic Lunch and on the second floor of the building there were living rooms and apartments. There was a cellar under the entire building which included the space under all three rooms, the Majestic Shoe Shine, the Theater and the Lunch. It was not partitioned off, but there were two rows of pillars which it appears coincided with the division walls on the first floor. A stairway led from the Majestic Theater room to the cellar and formed the means of approach from the first floor into the cellar under the Majestic Lunch and a trap-door permitted access into the cellar from the Majestic Shoe Shine. Under the room occupied by the Majestic Shoe Shine, at the time the lease was made, were the sewer connections, hot and cold water, spigots and tubs used for washing cloths and mops used in and about the theater as well as the wearing apparel of one of the plaintiffs who at the time lived in the apartments on the second floor. Gas and water pipes leading to the apartments on the second floor had been disconnected in the cellar and thus the apartments were without heat, gas, water and electric current. The plaintiffs were desirous of restoring this service and endeavored to erect a heating plant and construct a partition so that the cellar under the Majestic Shoe Shine should be entirely distinct and apart from the cellar immediately under the Majestic Theater and to this the tenant of the Majestic Theater objected and the present suit of equity is the outcome.

The bill of complaint contains a request for an injunction restraining the tenant from interfering with the erection of a wall in said cellar and from interfering with the erection of a heating plant within said area, being part of the cellar not immediately under the Majestic Theater. The lower court granted the injunction and this appeal followed.

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