Duhain v. Mermod, Jaccard & King Jewelry Co.

• Decision Date: 02 June 1914
• Parties: DUHAIN v. MERMOD, JACCARD & KING JEWELRY CO.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 364

105 N.E. 657

DUHAIN

v.MERMOD, JACCARD & KING JEWELRY CO.

Court of Appeals of New York.

June 2, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Louis A. Duhain against the Mermod, Jaccard & King Jewelry Company. From a judgment of the Appellate Division of the Supreme Court in the First Department (150 App. Div. 930,135 N. Y. Supp. 1109), affirming a judgment of the Supreme Court in the county of New York (73 Misc. Rep. 423,131 N. Y. Supp. 11), for plaintiff, defendant appeals. Affirmed.

William Beverly Winslow, of New York City, for appellant.

Henry W. Unger, of New York City, for respondent.

WILLARD BARTLETT, C. J.

This is an action for rent. In 1905, by a lease in writing, plaintiff let to the defendant a small store known as the Stoop Store, in the basement of the building No. 400 Fifth avenue, in the city of New York, for a term of 4 years, 10 months, and 20 days, ending on the 1st day of May, 1910, at a rent of $2,200 per annum for the first 10 months and 20 days, and for the 3 remaining years of the term at a rent of $2,400 per annum. The defendant entered into possession and occupied the premises during the entire term, but failed to pay the rent due subsequent to August 1, 1909, amounting to $1,800.

The building in which the store in question was located was originally a high stoop, private residence, and had been altered for business purposes, so that the Stoop Store occupied the basement hallway, and was accessible from the street only by passing under the highest part of the stoop. The space under the stoop extending 14 feet beyond the building line of Fifth avenue was inclosed with glass windows for display purposes, and defendant was permitted to use this space in connection with the leased store until April, 1908, when the board of estimate and apportionment, in the due exercise of its authority in the premises, directed the widening of Fifth avenue at this point so as to compel the removal of the stoop. The landlord complied with this requirement of the municipal authorities as, indeed, he was obliged to do; and in order to enable the lessee to utilize the frontage of the store for display purposes he constructed a new entrance in the form of an open vestibule by encroaching upon an adjacent store under his control. The construction of this new entrance, however, reduced the width of the store space by about one foot in front.

The defense was that the act of the landlord in thus removing this stoop, and the consequent reduction of the store space, although under compulsion from the municipal authorities, constituted a partial eviction, and hence that the rent of the entire premises was suspended during the continuance of such eviction.

It is plain from the findings that the space under the stoop was appurtenant to the leased premises, and that the parties contemplated its enjoyment by the lessee only as long as the city of New York should make no objection to the encroachment upon the street. It had permitted the encroachment for 25 years prior to the 24th day of July, 1909, and the plaintiff removed the stoop on that date against his will and desire, and only in consequence of a...