McCormick v. Anistaki

• Decision Date: 17 June 1901
• Citation: 49 A. 505,66 N.J.L. 211
• Parties: McCORMICK v. ANISTAKI.
• Court: New Jersey Supreme Court

49 A. 505

66 N.J.L. 211

McCORMICK

v. ANISTAKI.

Court of Errors and Appeals of New Jersey.

June 17, 1901.

Error to supreme court.

Action by John D. McCormick against John S. Anistaki. From a judgment in favor of the defendant, plaintiff brings error. Reversed.

John H. Backes, for plaintiff in error.

James Buchanan, for defendant in error.

DEPUE, C. J. This action was brought to recover damages for an injury sustained by the plaintiff in falling through an open hatchway in the hallway of a building located at the corner of Hanover and Broad streets, in the city of Trenton. The building had its front on Broad street, and the hallway in question led from the Hanover street entrance to the stairs, which were constructed for the purpose of reaching the second and third stories. The building was owned by Edward Stokes, as trustee, and was known as "No. 101 North Broad Street." Stokes was also the owner of the next adjoining building, known as "No. 103 North Broad Street." The adjoining building was leased by Stokes to one Charles Johnson. The letting was by a written lease made January 22, 1894, for the term of three years, with the privilege of renewal for two additional years. On the back of this lease was a consent, signed by Stokes, that the lessee might relet the premises to parties agreeable to the landlord. The plaintiff, at the time of the accident in question, was a tenant of the second story of the Johnson building. He testified that he had occupied that place since the summer of 1892, and that he is the tenant of Johnson. The defendant was the tenant of No. 101, which was the building at the corner of Broad and Hanover streets, by a lease from Stokes, which was dated January 18, 1897, and was for a term of five years from the 1st day of April, 1897. The term created by this lease will not expire until April 1, 1902. The letting of these premises to the defendant was for use and occupation as a drug store and business appertaining thereto, with the privilege of reletting the upper floors. The room on the Broad street front was occupied by the defendant as a drug store. The upper stories were sublet by him to tenants. The hallway in question was in the rear of the drug store, and was used by the tenants of the defendant to whom the upper stories had been let, and by the defendant himself. In the hallway, close to the door leading to Hanover street, was a hatchway, which was used by the defendant, in connection with his drug business, as a hoistway for the purpose of raising and lowering merchandise to and from the cellar under his drug store. This hoistway was about four or five feet square, and was co-extensive with the floor of the hallway, extending from the doorsill of the street doors to the bottom riser of the flight of stairs. When not used for the purpose of hoisting or lowering goods, the hatchway was covered with a trapdoor. When the trapdoor was up, the entire floor space was open, and when it was closed it formed a passageway between the street doors and the stairs. The Hanover street doors opened in over the hatchway. The evidence was that it was the practice of the defendant, while using the hatchway as a hoistway, to have the Hanover street doors always locked and securely fastened, and the defendant's clerks would be stationed inside to warn people going downstairs. The plaintiff had access to the part of the premises leased to him through the Hanover street entrance and through the hallway and up the stairway. He testified that he has always been going into his place of business in that way; that he never went in any other way since he occupied the premises. He testified that when he got to the head of the stairs at the landing on the second story, a narrow hallway led from the stairway to a door leading into his rooms. Stokes testified that the stairway had been there since the premises were built, 50 years ago, but the entrance from the stairway to the second story of the Johnson building was made about 11 years ago. It was made for the purpose of enabling the tenants of the second story of the Johnson building to use the Hanover street entrance. He also testified that the defendant was his tenant at the time when the door which was the entrance-way to the second story of the Johnson building was cut through, and that he has been his tenant ever since. Eleven years before the day of trial would fix the time at which this connection was made as in 1888. The defendant's lease produced was dated 1897. The plaintiff became a tenant of the premises in 1892, which was two years prior to the date of the lease to Johnson produced at the trial, and five years before the date of the defendant's lease that is in evidence. The Hanover street entrance to the second story of the Johnson building was made and in use four years before the plaintiff became the tenant. At the time the entrance to the second story of the Johnson building was constructed, Stokes was the owner of both buildings, and the fair inference from his evidence is that this mode of access was constructed either by him or with his consent. By the record it appears that Johnson, as the principal tenant, acquired a right to the use of this hallway and stairs as an entrance to his second-story rooms, as between him and Stokes, three years before the defendant acquired his rights in the passageway under the lease in evidence, and that the plaintiff had acquired a right to use the hallway for the purposes for which he was using it at the time...