
    Browning & Hull v. Dalesme.
    The first story, with the basement and sub-cellar, of a four story store, was leased to the plaintiffs; and the three upper stories to the defendant, at the same time; each with the appurtenances. The entrance to the upper stories was from the front, over a short entry leading to a staircase. This entry was separated from the residue of the first floor, by three folding doors, with bolts to fasten on each side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over which hatch a tackle and fall were placed, to elevate and lower goods, the wheel of which was in the attic, and it was worked by ropes passing down through the respective floors.' The keeping of the folding doors open in business hours, was a great advantage to the occupant of the first floor. The opening of the hatch in that floor, obstructed the passage to the upper stories, unless persons passed through the folding doors. — In a contest as to the rights of the respective- tenants ;
    
      Held, 1. That the tenant of the first and sub-stories had the right to use the hatchway in the entry, and the tackle and fall, for depositing goods in the basement and cellar, and elevating them therefrom ; making use of them in good faith, and not keeping the hatch open unnecessarily.
    2. That the tenant of the first floor had the right to keep the folding doors open, during business liours in the day time, free from the control of the tenant of the lofts; and that each had the right to close and fasten them at night.
    
      3. That the tenant of the lofts might pass in and out through the (hiding doors, when the hatchway was in use by the tenant of the first floor.
    (Before Oakley, Cii. J., and VaNderpoel and Sandford, J. J.)
    March 8;
    April 21, 1849.
    Tins was an action on the case, tried before Sandford, J., in June, 1848. The declaration claimed damages for the obstruction by the defendant of the folding-doors in the store No. 7 Pine street, as hereafter mentioned, and for fastening down their hatchway leading to the basement, and preventing them from using the tackle and fall extending from the top of the store to such hatchway.
    At the trial, the plaintiffs read in evidence a lease to them from the owner of the store, dated March 19, 1846, for the lower or first flour, the basement story, and the under cellar, of the brick warehouse or store No. 7 Pine street (the premises to be used for the sale of dry goods), for five years from May 1, 1846. They then proved that they were in possession in March, 1846, under a previous lease, and continued in possession until the trial. It subsequently appeared, that by a lease dated the same nineteenth day of March, 1846, the owner of the building demised to the defendant and one Gayot, for five years from May 1, 1846, the front part of the second story, and the whole of the third and fourth stories, of the same store, to be used for the sale of china and glass ware.
    It was proved that the arrangement and situation of the store when demised was as follows: — It was about twenty-five feet wide and seventy feet deep. . The front of the first floor was divided by stone columns into three openings of equal width, each of which was fitted with double sash doors. Through two of the front openings, the entrance was direct into the wareroom or store which occupied the entire first story. The third opening, which was about six feet wide, opened upon a small entry or passage, from which the stairs ascended to the upper stories. The stairs were placed along the exterior wall of the building and were two feet and ten inches in breadth, the lower step being about seven feet from the front opening. Separating this entry from the residue of the first story, were three large folding doors, fitted up on hinges, so that they might all be opened into the store on the first floor, and the entry thrown into and made an entrance to that store. These doors were fitted with bolts, so as to fasten on both sides. Two of them, which together were seven feet six inches wide, stood on a diagonal line, extending from the stone column separating the third from the middle front opening, at an angle of about fifty degrees, towards the inner side of the staircase. The third folding door, three and a half feet wide, extended from the end of the other two to the inner foot of the staircase, on a diagonal line, at an angle of about fifteen degrees from a line parallel to the front of the store. The staircase was separated from the first story by a partition. The only access to the upper stories, occupied by the defendant and Gayot, was by this staircase; and during the day, the sash doors of the front opening into this entry were always kept open for access to those upper stories.
    In the floor of the entry, there was a hatch door opening into the basement and under cellar. There was no other entrance in the front part of the store, into either; there being no outer door opening into tire basement or cellar. In the rear of the first story, there v/as access to the basement and cellar by a staircase.
    Over the hatch opening to the basement, there were open hatchways in the second and third floors, and in the top of the building there was a wheel fitted up with a tackle and fall, for hoisting goods into the upper stories, or letting them down into the basement and cellar. The fall rope extended down through the entry on the first floor into the basement. The basement hatch was of such a size, that when opened and the folding doors were shut, there was not enough of the floor left on either side of the hatch on which to pass in and out of the upper stories with safety.
    The plaintiffs proved that they occupied the basement of the store for shirtings, cloths, and woollen goods, which, before the obstruction, were lowered down by the fall through the hatchway ; and they rented the cellar for the storage of heavy Dundee goods, which were lowered and raised in like manner. That until the summer of 1846, during the business season, the plaintiffs opened the folding doors early every morning, and they remained open until evening. That it was an advantage to them to have those doors open, in order the better to display their goods, the store being situated where there -were many transient customers, and it added to the convenience of access to the upper stories, especially when the basement batch -was opened.
    In the summer or autumn of 1846 the defendant locked the basement hatch down, and cut off the fall, so that it could no longer be used in the basement. With some trifling exceptions, he thereafter prevented the plaintiffs and those under them from using that hatch. After that, the plaintiffs were obliged to roll or carry their goods intended for tbe basement, through the store and down the rear staircase, at great inconvenience, and their under tenant of the cellar abandoned it, In September, 1846, the defendant fastened the folding doors, so that the plaintiffs could no longer open them, and persisted in keeping them fastened, to the time that the suit was brought.
    The defendant proved, that besides the front doors opening into the entry at the foot of the staircase, which was provided with suitable shutters and fastenings, there was only a thin panel door at the head of the stairs, to exclude persons from his store when shut — also that when the hatch door to the basement was open, and the folding doors shut, it was very difficult if not impossible, to carry out any goods from his store.
    It appeared in evidence that there was a very large number of stores in the city of New York, built in tbe same manner as the one in question, and the first floor and upper floors occupied by different tenants ; the folding doors of some of vdiicli were made with fastenings on tbe outside, some on the inside, and some on both. The plaintiffs attempted to prove by witnesses, that the universal custom and usage among tenants in such cases was, for the tenant of the first floor to control the folding doors. Tile defendant introduced evidence to the contrary.
    After the plaintiffs rested their case, the defendant's counsel moved for a non-suit, on the ground that by the true construction of the leases, the eutryvay, outside door, and stairway leading to the second story, were part of the premises leased to the defendant and no part of those leased to the plaintiffs ; that the folding doors constituted the partition between the. defendant’s and the plaintiffs’ premises, the trap door was the floor of part of the defendant’s premises, and that neither the folding doors nor trap door could be opened, or the fall used without the defendant’s permission. The judge overruled the motion.
    The testimony having been closed, the judge charged the jury, that the lease to the plaintiffs gave them the exclusive use of the basement hatchway, (to be used in a reasonable maimer in respect of the occupants of the upper lofts,) and a right to use the fall hi common with the tenant of the upper stories ; and he directed the jury to find the damages sustained by the plaintiffs, if they had been deprived of the use of the fall and hatchway by the defendant. He reserved the question of law, as to the right of the plaintiffs, under the lease, to keep open the folding doors, and submitted to the jury the question whether there was a usage as claimed, authorizing the tenant of the first floor to keep such folding doors open during business honra, without the permission of the tenant of the upper stories ; and he instructed the jury to assess contingently the plaintiffs’ damages sustained by reason of the defendant’s preventing them from keeping the folding doors open.
    The jury found the damages on occasion of the obstruction of the hatchway and fall at $175 ; they found that there was not such a usage as to the folding doors, and they omitted to assess the damages in that respect. The cause was brought before the general term on a case made by consent.
    
      A. Thompson, for the plaintiffs.
    
      IT. P. Hastings, for the defendant.
   Bx the CouRT.

Oakley, Ch. J.

The plaintiffs’ lease gives to them the first story, basement, and cellar of the store with the appurtenances. In like maimer, the upper stories with the appurtenances are leased to the defendant. The plaintiffs claim the right to keep open the folding doors in question, and the right to use the hatch wap and fall, as appurtenant to the portion of the store demised to them; and that these things are annexed to the use and occupancy of their premises.

"We see no reason why they are not so annexed, nor why they should not be deemed appurtenances, when they are so essential to the enjoyment of the plaintiffs’ tenement. They clearly ha ye the r ight to use the hatchway and the tackle and fall in the accustomed manner, in order to have access to the basement and cellar, for the deposit of goods and their elevation from thence to the first floor. The defendant says such a use of the batch and fall would greatly obstruct the access to his premises, because while in use, it would be very inconvenient to pass by the hatch, in order to enter or leave his lofts. But this inconvenience is no just, ground for giving to this lease a different construction. The rights of each tenant must be taken in subordination to the other.

The tenant of the first story must not use the hatchway unnecessarily, or keep it open except when he is actually and in good faith using it to let down or take out goods. The inconvenience is one of those which unavoidably grow out of the mutual occupation of portions of the same tenement. The defendant, by preventing the plaintiff from using these appurtenances, committed a wrong for which the jury have properly assessed damages.

Another wrong of which the plaintiffs complained, was the defendant’s act in keeping the folding doors fastened. The defendant said it was necessary for the protection of his property in the stories above, that the doors should be kept closed. These folding doors appear to have been intended for two purposes, viz. for access to the basement hatch from the store on the first floor, instead of by the street entrance, and for the display of the store itself and the goods of the occupant there offered for sale. As to the question of right between these parties, we are of the opinion, that the tenants of the first story have a right to control these folding doors in the day-time and during business hours, and that the tenant of the lofts cannot interfere with such control. The object of placing bolts on both sides of the door, appears to be the mutual protection of all the occupants at night. Looking at the object of the bolts, as thus indicated, there is no risk» from having the doors open in the day-time. The tenants of the lower floor have the right to control the opening of the doors for the purposes of their business. Access to the lofts would not be prejudiced, but would rather be improved by these doors being kept open.

Our conclusion is, that the tenants of the first floor have a right to the hatchway and to the use of the tackle and fall, the same to be used in subordination to the like rigid of the tenant of the lofts above, causing no unnecessary inconvenience to him; and as to the folding doors, that they have a right to control them during the day-time, and the tenant of the upper stories cannot interfere with them. Both parties have a right to bolt the doors at night for the security of their respective premises.

The jury assessed no damages at the trial for the wrong complained of in respect of the folding doors, and we cannot assess them in this stage of the case. There must be judgment for the plaintiffs, for the damages given by the verdict.  