
    Nathalie Baylies, Resp’t, v. The Philadelphia & Reading Coal & Iron Company, App’lt.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    ¿ease — Right of wat — Defense in action fob bent.
    In an action for rent against the assignee of a lease, the defendant alleged that he has not been in possession of the premises leased, by reason of an eviction of defendant by the department of docks from a right of way to the North river, which was appurtenant to the lease and an element of value. It appeared that the premises leased did not abut on the liver, and the only communication therewith was over other lands which defendant leased from other persons. Reid, that defendant having alleged the existence of the right of way was bound to prove it; that he failed to do so, and that, even if it existed, as plaintiff was not shown to be responsible for the interference with it, the right of way could not be used as a defense to an action for the rent.
    Appeal from a judgment entered on the verdict of a jury by lie direction of the court, and from an order denying a motion |r a new trial.
    
      William J. Kelly, for app’lt; Kdmund L. Baylies, for resp’t.
   Bookstaver, J.

The complaint alleges a cause of action for Iree months’ rent, which it is charged is due from defendant as le assignee of a lease made in 1873 covering six lots on TwentyInth street. The answer denied that the leased premises are Illy set forth in the complaint, admits the original letting, but Inies that the covenants of the lease are binding upon the deidant; and also avers that the defendant has not been in the Issession of the premises leased, for the reason that a right-of-way 1 the North river was appurtenant to said lease, which was an ement of value and a consideration inducing to the assignment [the lease, and that there was an eviction of the defendant from part of the demised premises by the department of docks under act of the legislature, by which the department laid out and astrncted an exterior street outside of these premises in such Inner as to destroy the water approach aforesaid.

Irom the evidence it appears that the lots in question were not I any time during the lease bounded by the North river, and ft the only communication between these lots and that river |s over certain other lots on Twenty-eighth street which did it thereon and were in the possession of the defendant under a Ise from other parties. Consequently, the right-of-way was not pendent upon the lease in question, but upon another lease by ler parties. The defendant having alleged the existence of the lit-of-way is bound to prove it, and no proof sufficient to war|t the submission of the case to the jury was offered by the ¡endants. But even if it had succeeded in establishing that it obtained from the lease a right-of-way to the water over the lots in question, it is not shown that the plaintiff was in any waj responsible for the interference therewith, and, therefore, the right-of-way could not be used as a defence in the action by the plaintiff to recover the rent. Gallup v. Albany R. R. Co., 65 N. Y., 1.

The verdict, therefore, was properly directed for the plaintiff and the judgment should be affirmed, with costs.

Larremore, Ch. J., concurs.  