Koplo v. Ettenger

• Decision Date: 27 February 1925
• Docket Number: 56-1924
• Citation: 84 Pa.Super. 358
• Parties: Koplo and Koplo, Appellants, v. Ettenger
• Court: Pennsylvania Superior Court

84 Pa.Super. 358

Koplo and Koplo, Appellants, v. Ettenger

No. 56-1924

Superior Court of Pennsylvania

February 27, 1925

Argued October 15, 1924

Appeal by plaintiffs, from the judgment of the Municipal Court of Philadelphia-1923, No. 639, in favor of defendant on questions of law raised in the affidavit of defense in the case of Irving Koplo and Henry Koplo v. William Ettenger.

Assumpsit for moneys had and received. Before Lewis, J.

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

On questions of law raised in the affidavit of defense the court decided in favor of the defendant. Plaintiffs appealed.

Error assigned was the decree of the court.

Harry J. Gerber, for appellants. -- The plaintiffs were entitled to the use of the exterior walls of the store and basement Lowell v. Stratton, 145 Mass. 1; Baldwin v Morgan, 43 Hun. 355; Scott v. Optical Company, 38 Pittsburgh L. J. 368; Hele & Sattler v. Stewart &amp Albrecht Co., 19 W. N.C. 129.

Samuel A. Goldberg, and with him Wolf, Patterson, Block & Schorr for appellee. -- The plaintiffs acquired no rights outside the room and cellar, except such as plainly were included in the leased premises as appurtenant thereto: Cunningham v. Entrekin, 3 Dist. 291; Hele & Sattler v. R. K. Stewart & Albrecht Co., 19 W. N.C. 129; McMillan v. Solomon, 42 Ala. 356; Shawmut National Bank v. City of Boston, 118 Mass. 125; Raynes v. Stevens, 219 Mass. 556; Seidel v. Bloeser, 77 Mo.App. 172; Riddle v. Liddlefield, 53 N.H. 503; Stahl and Jaeger v. Satenstein, 233 N.Y. 196.

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

OPINION

HENDERSON, J.

The defendant filed an affidavit of defense in the nature of a demurrer to the claim of the plaintiffs on which state of pleadings judgment was entered in favor of the defendant, and from that action this appeal was taken. The defendant was the owner of a three-story brick building at the northeast corner of 8th and Filbert streets in Philadelphia which he had acquired on January 27, 1920, by conveyance from Maurice A Lieberman and others. Prior to this date, Lieberman and the other owners of the building had leased a part of it to the plaintiffs, which lease the lessors transferred to the defendant when he purchased the property from them. By this lease the plaintiffs became the tenants of " all that certain southern or corner portion of the store and basement of premises situate and known as the northeast corner of 8th and Filbert streets, for and during a period of six years and three months from the first day of March, 1918." The premises thus leased constituted the southern part of the first floor and the basement thereunder. The front of this room was on 8th Street. It is averred in the statement of claim as the cause of action that " the said defendant did on or about the first day of February, A.D. 1920, seize and possess himself of the southern wall and sidewalk of the said store for his own separate use and behalf, and having seized and possessed himself of the said southern wall and southern sidewalk continued in occupation and enjoyed the benefit thereof from that date to the date when the action was brought -- a period of about forty-three months." It was further averred that the defendant leased to a third person the privilege of conducting a lunch counter and stand for the sale of cigars, confectionery, soft drinks, etc., on the sidewalk on the Filbert Street side of the said building, and that he received a monthly rental of $ 50 therefor during the time above stated. The plaintiffs' assertion in the statement of claim and their present contention is that in leasing the room described they acquired the exclusive right to the use of the outside wall of the building and the sidewalk adjacent thereto; that the act of the defendant giving the permission complained of was disseisin pro tanto, and that they are entitled to recover from the defendant the amount which he had received from the occupant of the stand. It is not alleged that there was an entrance to the demised room from the Filbert Street side; on the contrary it appears in the discussion of the case that that was a blank wall; nor is it alleged that the enjoyment by the tenants of the leased room was interfered with or impaired. The case rests on the implication that by acquiring a term in the southern portion of the first floor of the building, the tenants acquired possession of the exterior of the southern wall and the sidewalk. The learned trial court held in a convincing opinion that the contract does not support that construction, and we are in accord with that conclusion. It is not made to appear that the outside of the wall and the sidewalk were necessary to the beneficial enjoyment of the demised property for the purpose for...