
    JOSEPH W. LYNCH, et al., Appellants v. HENRY HUNNEKE, Respondent.
    
      Injunction—Lease, and agreement to lease, partly in writing and partly by parol—Parol testimony in regard to written documents and in explanation thereof.
    
    Upon the trial of the issues the trial judge, after hearing part of the testimony offered by the plaintiffs refused to hear the remainder, and dismissed the complaint upon the ground that the lease did not give the exclusive use of the entrance and hallway to the stairway leading to the premises leased to the plaintiffs, and did not prohibit the cutting and use of a door by the defendant, from the hallway into the saloon. This ruling was erroneous, as it was based upon the theory or conclusion of the judge that the lease itself constituted the whole contract between the parties, and that inasmuch as the lease did not in terms grant to plaintiffs the exclusive use and control of said hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible, and so far as such evidence had been permitted to be given it must be disregarded.
    The general rule which excludes conversations, negotiations and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply to this case. (1) When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, then all the part not so reduced can be proved by parol. (2) When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, the consideration or the further consideration may be proved by parol. Parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. Such evidence does not contradict or vary the terms of the written contract, but is simply explanatory thereof.
    The lease in question was for six lofts above the first floor, “ together with the appurtenances." These words gave to the plaintiffs whatever was attached to or used with the premises as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took thereby any easement or servitude used or enjoyed with tlie leased premises ; and, as the appurtenances were not specified, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed their character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant ; and that in strict reliance upon the promise of the defendant, not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease.
    Parol evidence to this effect was partly given and partly offered to be given, but rejected. The plaintiffs did show that before the lease was executed the defendant proposed that, by express terms in the lease, he should reserve the right of cutting a door from the hall into the saloon, to which plaintiffs strenuously objected, and defendant expressly waived the point in plaintiffs’ favor. It must be assumed in this case that if the plaintiffs had been permitted to give in all the evidence competent under the issues, within the rules stated, they would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to relief against the injurious use of the hall leading to their premises, or of the side door that was cut from said hall into the saloon.
    Por the reasons stated the dismissal of the complaint constituted error.
    Before Freedman, P. J., and Gildersleeve, J.
    
      Decided July 5, 1892.
    Appeal from a judgment entered in favor of defendant upon a dismissal of the complaint after trial at the equity term.
    
      Bullard & Shannon, attorneys and E. F. Bullard of counsel, for appellants, argued :—
    I. The court erred in ruling that the lease did not give the exclusive use of the hallway to the plaintiffs or prevent the cutting of a door from the hall into the saloon as described in the complaint. “ A grant of a thing will include whatever the grantor had power to convey, which is reasonably necessary to the enjoyment of the thing granted.” 3 Wash. on Real Prop., 419. “Some things pass by the conveyance of land as incident, appendant or appurtenant, such as a right of way or easement. If a house or store is granted, everything passes which belongs to, and is in use for it as an incident or appurtenant.” 4 Kent, 467; U. S. v. Appleton, 1 Sumner Rep., 492. “ The term appurtenance signifies something appertaining to another thing as principal, and which passes as incident to the principal thing.” N. Ips. Factory v. Batchilder, 3 N. H. Rep., 190; Havin v. Elliott, 10 Peters U. S., 25. If the defendant could not enter the saloon without cutting the door from the hall, the law would presume that he intended to reserve a right of way as a matter of necessity. “ But it must be strictly a way of necessity, and great convenience will not be sufficient.” Washburn's Easements, etc., 32. “ It cannot be denied that if a man builds a house and there is actually a way used, or obviously and manifestly intended to be used by the occupiers of the house, the mere lease of the house would carry with it the right to use the way, as forming a part of its construction.” lb. 27. Deeds are construed most strongly against the grantor. The lease carried the hall as much as the upper loft, because no reservation was made by the lessor. In the case of Schrymser v. Phelps, 33 Hun, 474, the mortgage released a certain portion of the premises, without reserving- a right of way which was used in the adjoining building, held the right of way was lost. So, in the case at bar, the defendant and his counsel wanted to make the reservation, but the tenant refused to hire with such reservation and the landlord waived it. “ The purchasers take with all the incidents and appurtenances which appear at the time of sale to belong to it.” Simmons v. Cloonan, 81 N. Y., 557.
    II. The plaintiffs had also a right to recover for the nuisance permitted by the defendant. The plaintiffs offered to prove these which were their main cause • of damage. Such acts were clearly admissible. 128 N. Y., 341. In such a case the landlord is hable and it amounted to an eviction if the plaintiffs had abandoned' the premises. Gerard on Titles to Real Estate, 185. If the landlord permits it he is equally liable. Hochstrasser v. Martin, 41 State Rep., 761. Thus when the owner rents premises knowing that they will be used as a bawdy house he can be convicted as a keeper. People v. Erwin Clark, 4 Den., 129. In this case the plaintiffs desired to keep a respectable house for persons of small means, and the lease restricted them from admitting females. Yet the defendant permitted a nuisance by allowing lewd women to enter the only hall by which the plaintiffs’ guests could enter, which ruined the business of the plaintiffs.
    III. The verbal contract proved that the door should not be opened, was an independent contract, and not excluded by the writing. Lewis v. Seabury, 74 N. Y., 409. The plaintiffs refused to take the lease except on those conditions and the defendant assented. • Such assent is equally binding as a direct promise.
    
      J. Homer Hildreth, attorney and of counsel, for respondent, argued:—
    I. The complaint being founded upon a written lease, executed by both parties to this action, the plaintiffs must stand or fall thereon. Reference to the lease in-evidence shows that the specific premises demised are the “ six upper lofts.” Nothing is said therein about the means of approach or entrance to said premises; and no provision is made therefor, except the language usual to all leases,—“ with the appurtenances.” These latter words it is well settled pass nothing but a privilege or easement, incident to the leasehold to-wit: free ingress and egress. See Co. Lit., 121; 1 Chit. Pr., 153, 154; 10 Peters R., 25. Hence nothing contained in said lease grants to plaintiffs the exclusive use and control of the ' entrance or hallway from Third avenue to said demised premises which is averred to be “ appurtenant thereto.”
    II. Recognizing such to be the fact, plaintiffs’ counsel thereupon sought, under the averments- of the complaint, to introduce evidence of a prior or cotemporaneous agreement, touching the use of said hallway and leasing of a lower floor to third parties. Such line of evidence was in the first instance admitted under defendant’s objection, by the court below, “ for what it is worth; ” but thereafter the plaintiffs having rested the court upon further deliberation granted the motion of defendant’s counsel for a dismissal of the complaint.
    III. The final disposition of the case by the justice sitting at special term, was the only one warranted by the pleadings and proofs, and in harmony with the settled law of this state because (a) The case at bar is within the rule not the exception; no oral collateral agreement to the lease is alleged in the complaint but at the most only a prior or eotemporaneous one, “ which led to the execution of said lease.” Neither is any fraud, mistake or ambiguity averred. The rule is the same in equity as at common law; and where a lease is in writing, the rights and duties of the parties depend upon the terms or legal intendment of the lease itself, as it is conclusively presumed that the whole engagement is embraced therein. Therefore the contract cannot be controlled by evidence that it was executed on the faith of eotemporaneous or preceding oral stipulation not embraced in it. Especially is this rule absolutely controlling in equity where it appears that the party knew of the nature and contents of the instrument signed. Wilson v. Deen, 74 N. Y., 531, 534, 536, 538. The principle so clearly asserted in Wilson v. Deen, supra, has since been faithfully followed and repeatedly affirmed, in spite of hardships admitted by the courts to exist in special cases. Eighmie v. Taylor, 98 N. Y., 288, 294, 297, 300; Englehorn v. Reitlinger, 23 J. & S., 485, Affirmed in the Court of Appeals. See 122 N. Y., 76, wherein the language of Rapallo, J., in Wilson v. Deen, supra, viz.: “ Writings would he of little value if they could always be controlled by oral evidence of what was said by the parties at the time of their execution ! ”— was expressly adopted as expressing the unchanged views of the court. See also, Thomas v. Scott, 127 N. Y., 133,139, 142, re-affirming the rule laid down in the previously cited cases. Likewise see Bohm v. Lies, N. Y. City Superior Court, April General Term, 1892, wherein the general rule is stated to he well settled that parol evidence must be excluded when offered to contradict or vary the terms or legal import of a written •agreement; and that an agreement being complete on its face, oral evidence offered to vary it was properly excluded by the court.
   By the Court.—Freedman, P. J.

The plaintiffs, by their complaint, alleged : That by a lease, duly executed under the hands and seals of the parties, the defendant demised to them the six upper lofts (consisting of three in front and three in the rear) of the buildings known as No. 2374 Third avenue in the city of New York, to be used and occupied by the plaintiffs as a first-class lodging house or hotel for lodgers of the male sex only, together with the appurtenances, for the term of three years from May 1, 1891, at a certain yearly rent; that in and by the said lease the defendant covenanted that the plaintiffs, on paying the said yearly rent and performing their other covenants contained in said lease, should and might peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid ; that when said lease was executed the lower room of the building was unoccupied; that the only entrance to said demised premises then and now, from Third avenue, is by a hall about six feet wide, with a front door and stairs in the hall leading to the second story, which front door and hall are appurtenant to the demised premises, without which the said demised premises could not be used; that during the negotiations which led to the execution of said lease the defendant stated in substance to the plaintiffs, that he might want to rent said lower floor for a saloon, and would like to cut a door from said hall into the lower room; that the plaintiffs then and there stated to the defendant that they would not hire the premises or execute said lease if such door was to be cut through or if the lower room was to be rented for a saloon; that the defendant then promised he would not do so, if the plaintiffs executed the lease, and thereupon the said lease was executed by both parties; that the demised premises have forty-four lodging rooms, and they are rented by the plaintiffs to respectable people only, for lodging purposes, and no beer or intoxicating drinks are sold on said premises, of which fact the defendant had due notice; that about July last the said defendant rented said lower room to one S. Buttner, who went into possession, and about October 1 commenced selling intoxicating drinks; that on the 15th day of October, 1891, said Buttner, or some one in his employ, without the consent of the plaintiffs, but with the permission of the defendant, cut an opening for a door from said hall into the lower floor or saloon, and placed a door therein ; that the plaintiffs immediately notified said defendant of the said door, and objected to the same and stated to him in substance that he would be held responsible if he did not have said door closed and keep the persons frequenting said saloon from entering the said hall; that ever since October 17th last the said saloon has been a disorderly house; that Buttner was succeeded by another tenant and that since that time the said room was kept partly as a resort for lewd women and partly as a pool-room; that lewd women and disorderly men have been in the constant habit of entering the said hall and passing through the said door into the said lower room and at times have been in the habit of making disorderly and loud noises and frequently as late as four o’clock in the morning ; that the plaintiffs protested against these occurrences but without success ; that it is necessary for the business of the plaintiffs that the front door leading from the street into said hall should be unlocked during the day and most of the night to allow their guests to come and go as their business might require; that by reason of the occurrences complained of and the passage of the persons complained of through said hall, many of the plaintiffs’ guests, have been compelled to abandon the demised premises.

Upon these and other allegations not necessary to be specifically mentioned, including allegations of damages sustained and that the plaintiffs have no adequate remedy at law, the plaintiffs prayed that the defendant, his agents and tenants, be restrained from entering the hall leading from the front door to the upper stories occupied by the plaintiffs; that the said defendant be compelled to close up the door leading from said hall into the saloon or lower room of the building; that the plaintiffs recover their damages already sustained, etc., etc.

The defendant, by his answer, admitted the execution and delivery of the lease as alleged by the plaintiffs, but in all other respects denied the allegations of the complaint.

Upon the trial of these issues the learned judge, after hearing part of the testimony, offered by the plaintiffs, refused to hear the remainder and dismissed the complaint upon the ground that the lease did not give the exclusive use of the hallway to the plaintiffs and did not prohibit the cutting of a door from the hall into the saloon. This ruling seems to have proceeded upon the theory that the lease constituted the whole contract between the parties and that, inasmuch as the lease did not in terms grant to the plaintiffs the exclusive use and control of the hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible and so far as it had been permitted to be given, had to be disregarded.

In this I think the learned trial judge erred.

The general rule which excludes conversations, negotiations, and parol agreements prior to the execution of ' a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply. (1) When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, in which case the part not so reduced can be proved by parol j and (2) When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, in which case the consideration, or the farther consideration, may be proved by parol. Hope v. Smith, 35 N. Y. Superior Ct. R., 458, affm’d 58 N. Y., 380.

So parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. Such evidence does not contradict or vary the terms of the written contract, but is explanatory thereof.

In the case at bar the lease was for the six lofts “ together with the appurtenances.” These words gave to the plaintiffs whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took any easement or servitude used or en-with the demised premises. Doyle v. Lord, 64 N. Y., 432.

As the appurtenances were not specified, parol evidence was admissible to show their character and extent, and that being so, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include and that the defendant would not make a change in such appearances in derogation of his grant, and that in strict reliance upon the promise of the defendant not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease.

Parol evidence to this effect was partly given and partly offered to be given, but rejected. Moreover the plaintiffs did show that before the lease was executed, the parties did meet and had a discussion ; that in the course of it the defendant proposed that he should be allowed in express terms to be inserted in the lease to reserve the right of cutting a door from the hall into the saloon, and that the plaintiffs so strenuously objected to it, giving reasons for their objections, that the defendant expressly waived the point in plaintiffs’ favor.

Under all the circumstances as they appear at present, it must be assumed that the plaintiffs, if they had been permitted to give all the evidence which was competent under the issues within the rules above stated, would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to some relief against the injurious use of the hall leading to their premises or of the side door cut from said hall into the adjoining saloon.

For the reasons stated the dismissal of the complaint constituted error.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Gildersleeve, J., concurred.  