
    Thomas Crimmins, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 17, 1895.)
    
    1. Elevated railway — Lessees.
    A lessee in a lease, executed after, can recover only where it is the renewal of a lease executed before, the construction of the road.
    2. Same — Pleading.
    In such case, the complaint must allege that the existing lease was such renewal.
    Appeal from a judgment entered in favor of plaintiff.
    
      Julian T. Davies and Frederick Allis, for app’lts; Benjamin Yatest for resp’t.
   Parker, J.

This suit seems to have been prosecuted with the idea that certain facts which ought to have been alleged and proved could be assumed by the court. The complaint alleges the execution of certain leases March 1, 1869, by Adam T. Saclcett to-Thomas and John D. Crimmins, covering certain vacant lots on the southerly side of Sixtieth street, for a period of twenty-one years, with privileges of renewal for the further period of twenty-one years each ; the erection of buildings thereon by the lessors; an assignment by John D. Crimmons to Thomas Crimmins of his interest therein, and that Sarah E., Clarence, Gertrude T,, George E., Helen T., William and B. Lambert Saclcett leased and conveyed to the plaintiff, Thomas Crimmins, on the 15th day of April, 1890, the same premises for a period of twenty-one years, with the privilege of renewal for two further terms of twenty-one years each. It does not contain an allegation connecting the lease of 1869 with the one of 1890. The grantors in the leases are not the same, and the complaint does not allege that the title of the original lessor has become vested in the lessors of the lease of 1890. Nor does it allege that the second lease was made in purstiance of the renewal clause in the first lease, or that it grew out of it or was connected with it in any manner. This question was brought to the attention of the court by a motion to dismiss, made at the commencement of the trial. But the complaint was not amended, nor was an amendment asked for. Nor do we find any evidence connecting the leases of 1890 with those of 1869. The leases of 1890 do not recite the execution of former leases by Adam T. Sackett, and the devolution of his title upon the lessors in the lease of 1890. They do not recite any right of renewal covenanted in the former leases, or that the present leases are made in pursuance of such right, or that the new rent has been appraised or fixed under the terms of a renewal clause. No evidence was presented aside from the leases bearing upon these questions. We may conjecture that the lease of 1890 was a renewal of that of 1869, by parties who had succeeded to the title and interest of the lessor of the 1869 leases, but it is neither alleged nor proved that such is the fact. If the existence of such facts be essential to sustain a recovery for rental damage during the present term, the conjecture of the court will not suffice to accomplish the purpose. They must be proved.

The courts have been called upon to apply the general principle that the right of action belongs to the party who sustains the loss in a number of suits between lessees of real estate and elevated railroads, resulting in the establishment of certain rules: (1) When the lease is made subsequent to the construction of the elevated railroad, the exclusive right of action is in the landlord. This is because the rent is presumed to be based upon the reduced value of the property occasioned by the railroad which burdens the landlord with the loss. (2) The lessee has the right of action •where the lease was made before the building of the road. In such case the lessee pays for the full use of the property, and is deprived of part of it, and therefore is the one injured. (3) Under a renewal lease made after, but in pursuance of, a lease given before the elevated railroad, and by which the parties are constrained in fixing the rent, terms and conditions of the renewal lease, the right of action is in the lessee; and this is so because the two terms are treated as the outcome, in effect, of one continuous lease, commencing, before the railroad, and therefore within the rule applicable to leases for a term of term of years made prior to the construction of the elevated railroad. Kernochan v. Railroad Co., 128 N. Y. 559 ; 41 St. Rep. 110; Kearney v. Railroad Co., 129 N. Y. 76; 41 St. Rep. 119 ; Witmark v. Railroad Co., 76 Hun, 302; 57 St. Rep. 801.

Having these general rules in mind, we see that the lease of 1890, standing alone, and wholly unconnected with any other lease, would deny recovery to plaintiff for rental damage for the present term, for it was made after the railroad was built. Therefore, it became necessary for the plaintiff to prove, if he could, that the lease of 1890 was not an independent lease, but one of the renewals provided for by the lease of 1869, which latter lease ■so constrained the action of the parties that they or one of them were not a condition to negotiate freely with reference to the sitúatian existing in 1890. This burden the plaintiff did not meet. Indeed, his complaint was not so framed as to entitle him to meet it without amendment. It did not allege that the lease of 1890 was a renewal of the lease of 1869, the only other lease pleaded. Although it asserted that the lessors were different, it contained no allegation that the lessors in the lease of 1890 had succeeded to the title of the lessor in the lease of 1869. Upon these questions the evidence, as we observed at the outset, is also silent. As the judgment of a court must be founded on evidence rather than surmise, the judgment rendered must fall for want of support.

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

All concur.  