Douglas v. Coonley

• Decision Date: 04 October 1898
• Parties: DOUGLAS et al. v. COONLEY et al.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 521

51 N.E. 283

DOUGLAS et al.

v.COONLEY et al.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, general term, Third department.

Action by Nathan G. Douglas and another against Daniel S. Coonley and another. From a judgment of the general term, Third department (32 N. Y. Supp. 444), reversing a final judgment entered upon the decision and order of the court at special term, sustaining plaintiffs' demurrer to defendants' answer, plaintiffs appeal. Order reversed, and judgment of special term affirmed.

Gray and Bartlett, JJ., dissenting.

William P. Cantwell, for appellants.

Walter J. Mears, for respondents.

PARKER, C. J.

By his will, Henry B. Smith conferred upon executors named therein the power to sell and convey his real estate. It consisted in part of a threestory building that had three stores on the ground floor. The executors conveyed the middle store to Margaret A. Cantwell, and the store next adjoining it on the west to this defendant Coonley and one John Hughes and Hughes' title has since been acquired by the defendant Sophronia C. Smith. Between the said middle and west stores was a wall that the conveyance made a party wall, and from the street to the upper rooms of the building, immediately adjoining this party wall on the west side, there was a stairway that was used by the occupants of both buildings, it being the only mode of access between the upper and lower floors of either building. After Coonley and Hughes had become the owners of the west store, they undertook to confirm the alleged right of Margaret A. Cantwell to use this stairway in common with themselves as a means of ingress and egress to and from the two floors above her store, and to that end executed a deed of conveyance, by which, as the complaint recites, was ‘granted, sold, and conveyed to the said Margaret A. Cantwell, her heirs and assigns, the right of way to pass and repass up and down the passageway or stairway between the store owned by Margaret A. Cantwell and of the parties of the first part hereto at all times, in common with the parties of the first part hereto, for the purpose of going and returning to and from the rooms in the upper part of said stores; the party of the second part to pay one-half of the expense of keeping the stairway in repair.’ Subsequently, these plaintiffs succeeded to the title of Margaret A. Cantwell in and to the middle store; and thereafter, and on the 11th day of January, 1893, the entire building was destroyed by fire. The parties at once reconstructed the buildings on the same foundation as before, and united in the construction between the two stores of a party wall similar to the one formerly existing, except as to the doorway leading from the head of the stairway to the second floor of the plaintiffs' building. The plaintiffs put in a frame for such doorway when the wall was being constructed, but afterwards defendants tore the frame out, and built that portion of the wall up solid, thus preventing the plaintiffs from obtaining access to their premises by means of the stairway. The defendants, though frequently requested, refused to permit the plaintiffs to enjoy the stairway in common with them.

It is conceded that, prior to the destruction of the building by fire, the plaintiffs had a legal right to use, as they did, this stairway and the doorway in the party wall as well, in common with the defendants. But it is contended that the effect of the destruction of the building by fire was to destroy this easement. The diligence of counsel has not succeeded in bringing to light a similar case, in this country, nor have we been more fortunate. The appellate division regarded the case as controlled by Heartt v. Kruger, 121 N. Y. 386, 24 N. E. 841. That case is certainly authority for the proposition that these plaintiffs had no right to insist upon a reconstruction of the party wall or of the stairway. The buildings having been destroyed without fault on the part of the defendants, it was their right thereafter to make such use of the land as should seem to them most conducive to their interests. They could not by their own act affect the plaintiffs' easement, but, an outside force beyond the defendants' control having destroyed the buildings and the major part of the party wall, it was within their power thereafter to so use the land that the plaintiffs' easements should not be revived. Had they done so, a situation would have been presented within the doctrine of Heartt v. Kruger, supra. But this they did not do. Instead, they united with the defendants in constructing a party wall, and rebuilt the stairway in precisely the same place as before; and thus within a comparatively short period of time the buildings, so far at least as the stairway and party wall are concerned, were exactly the same as if the fire had never taken place. And the question is, did this conduct of the parties operate to revive the easement that was suspended by the destruction of the property? If such be the effect of this action, the result is certainly equitable and in accordance with good conscience. The plaintiffs' predecessor in title, in purchasing the middle store, acquired the right to use the stairway and the...