
    Joseph Finnigan, by Abraham Jacobs, Guardian, Respondent, v. Frederick Biehl, Appellant.
    (Supreme Court, Appellate Term,
    March, 1900.)
    Negligence — Bight of landlord to show he was not in possession of an area, whose grating caused an accident to a third party — Lease as evidence of nature of possession.
    Where the owner of premises in the city of New York is sued for injuries alleged to have been sustained by a third person from a defective grating covering an area located within the stoop line, close to the cellar wall of the premises and lighting and ventilating the cellar from the street, the owner is entitled to show that he was not, at the time of the accident, in possession of the area, as his liability to the plaintiff is dependent thereon; and, therefore, he should be permitted to prove, upon the trial, a written lease of the first floor and cellar, with “the appurtenances”, to the end that 11 may be determined whether, under a true construction of the lease In the light of the intention of the parties to it and of their acts undci it, the owner retained title to the area and was therefore bound 1“ repair it, the tenant having only an easement of light and air there from. Whether an area not specifically referred to in a lease of a store and cellar is conveyed by the lease depends upon whether it is an incident and so piece or parcel of the demised premises, or not
    Appeal by defendant from a judgment in favor of plaintiff, rendered in the Municipal Court, borough of Manhattan.
    Edward P. Orrell (Edward W. S. Johnston, of counsel), for appellant.
    Abraham Levy, for respondent.
   Dugbo, J.

The defendant was the owner of a tenement-house in which there was a store floor and a cellar under it. The cellar was lighted and ventilated from the street through a small area which was covered with a grating leaded into a stone-coping. The area was located within the stoop line and close to the cellar-wall of the house. The plaintiff claims that he was injured through the lack of repair of the grating.

Upon the trial the defendant endeavored to- show that at the time of the injury to the plaintiff the area was in possession of a tenant, and to aid him in his endeavor here offered in evidence a written lease made by him of the store floor and cellar, and duly excepted to a ruling excluding the paper. Upon the correctness of this ruling depends the result of this appeal. The liability of the defendant depends upon whether the area was in his possession, ■at the time of the accident or not.

Whether the lessee had only an easement of light and air through the area or had the right of possession of the area was a question of fact dependent upon the intention of the landlord and tenant at the time of executing the lease. If the landlord conveyed by the lease merely an easement of light and air through the area as appurtenant to the demised premises, the obligation to repair the . area, which included the grating, was upon the landlord, as he retained possession of the area. If, however, the landlord conveyed by the lease the area itself as part and parcel of the premises demised, the obligation of repair was on the tenant, as he became entitled to the possession of the area. The question of right of possession as beforesaid depends upon the intention of the parties at the time of the execution of the lease, and this intention can be shown by a description of the premises, the terras of the lease, evidence of the circumstances attending its execution, and any later matters which would aid in throwing light upon the way in which the parties interpreted the lease.

The lease was thus material evidence in order to enable the landlord to support his claim that the obligation of repair lay on the tenant.

The mere fact that the area is not specifically referred to in the lease is by no means conclusive that it was not part and parcel of the demised premises, for the rule of law is that where a house or store is conveyed by the owner thereof, everything then belonging to, and in use for the house or store, as an incident or appurtenance passes by the mere grant, and this is true of a lease. Doyle v. Lord, 64 N. Y. 432; Chaplin Landl. & Ten. 82.

As an appurtenance cannot be part of the land, it follows that tho area itself could not be an appurtenance. It either passed with the premises leased as a part and parcel thereof by virtue of the rule, or it remained with the landlord, and an easement merely passed as an appurtenance.

There was evidence that the area belonged to and was in use for the cellar. The witness Ungrich testified that the area was for the purpose of admitting light to the cellar and that the grating was for the protection of the window (to the cellar) the same as a window-guard; the witness Eckard testified that it was the usual form of grating over such a window, and that the grating had been there twenty years. The depth of legal knowledge which the evidence of the former witness suggests makes his evidence remarkable. So far. as the case shows, it seems that the area was solely for the use of the cellar to which it afforded a passage for light and air.

It may well be that the area belonging to and being in use for the cellar and being covered by a grating intended to be permanently affixed, was a mere incident to the cellar, and passed by a lease of it particularly in view of the fact that the only access to' the area was through a window of the cellar.

If, however, the area did not pass to the tenant as part and parce] of the premises leased, the tenant’s right, with respect to the area, was covered by the term “appurtenances” in the lease, and was merely an easement of light, air, etc., which in no way gave him possession of the area. The landlord might, under such circumstances, remove the area walls and grating, and so long as it did not affect- the tenant’s easement the tenant would have no just cause for complaint, because the term “ appurtenances ” did not give the tenant an interest in the area as land demised.

The act of the landlord in repairing is merely evidence of his conduct, subsequent to the lease, to be considered as it may bear upon the question of intention at the time of the lease, and does not of itself carry an obligation of continuous repair.

Tf the lease had been admitted the defendant might have shown that the area was an incident to the cellar and passed by the lease as part and parcel of the premises demised, and so have shown that he was under no duty to keep the grating in repair.

- It was, therefore, error to exclude the lease, and for the error the judgment must'be reversed and a new trial ordered, with costa to appellant to abide event.

Truax, P. J., and Scott, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  