
    The United States Restaurant and Realty Company, Plaintiff, v. David A. Schulte et al., Defendants.
    (Supreme Court, New York Trial Term,
    May, 1910.)
    Abutting owners — Rights .and liabilities in general — Extent of abutting owners’ rights in street.
    Landlord and tenant — Rights and liabilities in regard to premises — Description, extent and condition of premises — Property included — Rights in street.
    As a general proposition, an owner or tenant of premises abutting on a public street in the city of New York cannot use the street for private gain, as the streets are for the use of the public, subject to such regulations as the Legislature may adopt or may empower the municipality to make.
    
      The lease of a store under a hotel carries with it the easements of light, air and access through the public street in front of the premises, but does not include the right to grant a privilege of maintaining a sight seeing automobile at the curb.
    The maintenance of a hack stand in front of a hotel building is an incident to the use of the premises for the purposes of a hotel, but the maintenance of a sight seeing automobile is not incidental to the use of a store under the hotel.
    Although, by reason of a prior license given by the landlord who
    owns the hotel to a taxicab company to maintain a cab stand in front of said premises and a municipal license granted in conformity therewith, the use of the street by the sight seeing automobile is interfered with, the tenant of the store cannot be held thereby to have suffered a partial eviction.
    Action for rent. The opinion states the ease.
    Robert L. Fowler, for plaintiff.
    Jerome Eisner, for defendants.
   Bischoff, J.

To an action for rent of a store, having a street frontage and forming part of the building used by the plaintiff as a hotel, the defendants plead an eviction and breach of the covenant of quiet enjoyment, in that they and their sublessee have been excluded from certain street rights deemed to be appurtenant to the premises demised. Prior to the making of this lease, the plaintiff had granted to the New York Taxicab Company the exclusive privilege of maintaining a cab stand in front of the hotel premises, which may be taken to have included this store front. The defendants sublet desk room and telephone privileges in the store to an under-tenant, with privilege of maintaining a sight-seeing automobile at the curb; and the resulting conflict between the assumed rights of the defendants’ under-tenant and of the plaintiff’s licensee has led to the present controversy between landlord and tenant.

The lease to the defendants is silent as to any reservation of street rights to the tenants, and the question whether the landlord’s license to the taxicab company is an interference with the tenants’ use and enjoyment of the premises demised depends upon the extent of the tenants’ rights in the street as appurtenant to that lease. As a general proposition, an owner or tenant of premises abutting on the public street cannot use the street space for his private gain, the streets being for the use of the public, subject to such regulations as the Legislature may adopt or may empower the municipality to make. Cohen v. Mayor, 113 N. Y. 532; Peace v. McAdoo, 110 App. Div. 13. The defendants’ substantial easements of light, air and access have not been impaired; and, while the plaintiff, as the owner of hotel premises, could by its consent, as it did, authorize the city to license a cab stand on the street opposite the hotel (City v. Reesing, 38 Misc. Rep. 129; People ex rel. Thompson v. Brookfield, 6 App. Div. 398), this deprived the defendants of nothing, since the right attached to the nature of the premises as a hotel and did not extend to a store front. It appears that the municipal authorities have not recognized the assumed rights of the defendants to maintain a sight-seeing automobile opposite the leased premises, nor, by statute or ordinance agreeably to a statute, does such a right exist. Were the proofs such as to show that the defendants had been excluded from some lawful use of the street, through the landlord’s prior consent to the maintenance of the cab stand, there might be some possible ground of defense to this action; but-, as the matter is presented, there has been no actual exclusion from any use to which the tenants may lawfully devote their street frontage. The licensing and presence of a cab stand was an incident to the hotel premises in which the store leased by the defendants was situated; and, since the lease in no way expressed a limitation upon the landlord’s incidental right to approve the license and to protect the licensee, the defendants, equally with other lessees of space or hirers of accommodation in the hotel, have no cause for complaint.

I conclude that there should be judgment for the plaintiff for the amount demanded, with costs.

Judgment ¿for plaintiff, with costs.  