
    Henry Steffens, Plaintiff and Respondent, v. John D. Collins, Defendant and Appellant.
    1. Where the defendant, J. D. Collins, by his written agreement with the plaintiff, H. Steffens, “ agrees that Henry Steffens, the present lessee and occupant of the first floor of house, Ho. 166 Maiden lane,* * may continue to use and occupy the said premises,” for a time and on conditions therein specified, and the plaintiff sues the defendant for subsequently erecting a partition across a part of said first floor, so as to enclose a passage-way leading from one of two front doors on said first floor to upper stories of said building, it is competent for the defendant to prove that the said agreement was given to the plaintiff at the request of one Atherden, who had theretofore occupied the premises under a lease from the defendant then unexpired ; and that when Atherden took possession, the partition was up, and he having taken down the partition, was bound and had agreed to restore the same whenever the defendant should request it. That Atherden sold out to the plaintiff, and it was part of the terms of sale that the plaintiff should perform Atherden’s agreement in respect to the partition.
    
      2. It appearing and being conceded that the plaintiff had no right of passage over the first floor to the upper stories, and that the defendant had; and, therefore, that the plaintiff had no right to the exclusive occupation of every part of the first floor; such evidence is competent to prove of what precise part of the first floor the plaintiff was lessee, and was to have the continued possession, within the meaning and intent of the parties at the time of executing the said agreement.
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 20;
    decided, March 10, 1860.
    This is an appeal by the defendant from a judgment against him, and from an order denying a motion for a new trial. The complaint states, that the plaintiff “is the lessee, occupant and proprietor of the first floor of the house, Ho. 166 Maiden lane, in the city of Hew York, which he hired from the defendant at the yearly rent of eight hundred dollars.” That he occupied said first floor “ as a refreshment and eating saloon;” and that defendant wrongfully “erected a partition through said first floor,” and continues the same to the annoyance and injury of the plaintiff; and thereby interferes with the convenience and accommodation of plaintiff’s customers, and thereby also has deprived the plaintiff of the custom of his usual patrons, to his damage, $3,000.
    The answer puts at issue all the material allegations of the complaint. The action was commenced on the 11th of December, 1857, and was tried before Mr. Justice Slosson and a jury on the 26th of October, 185,9.
    At the trial, the plaintiff produced and read in evidence a paper writing signed by the defendant, dated Hovember 14, 1856, reading thus, viz. :
    “ I do hereby agree that Henry Steffens, the present lessee and occupant of the first floor of house, Ho. 166 Maiden lane, in the city of Hew York, may continue to use and occupy the said premises as long as I hold the lease thereof granted to me by John B. Hunter, dated September 5th, 1854, for ten years from first May, 1855, and recorded in Register’s office, in Liber 677, page 297, provided, Henry Steffens pays the rent he now pays, which is $800 a year, payable monthly, in advance; and provided I don’t sell the lease, and before I sell the lease Henry Steffens shall have the first right to buy it, for the same price any one else will give for it; and if Henry Steffens don’t buy it, then I am to pay him for his good will, stock and fixtures, at a fair valuation, before I can make him leave it.”
    The plaintiff then gave evidence tending to show, that at the time said agreement was executed, there were two doors on Maiden lane opening into said first floor; one near one corner of the building and in front of a stairway leading to the upper stories thereof, and the other nearly in the center of the building; and that the defendant subsequently put up a partition enclosing the entrance to the upper lofts, in which partition was a door through which persons could pass to and from said first floor. He also gave evidence tending to show that this partition interfered with the easy access and egress of persons acqustomed to patronize him; and that his business was much reduced.
    
      Henry Knack, the plaintiff’s bar-tender, and a witness on "his behalf, on cross-examination, testified thus:
    “Mr. Atherden occupied the premises, and carried on the same kind of business there before the plaintiff went there; the plaintiff bought him out, his stock, fixtures, good will, lease and everything; I negotiated the purchase for him. * * I negotiated the whole thing; I paid the money. Steffens was never present, except when the paper about the premises was signed by Mr. Collins at Mr. Stallknecht’s office; nothing was paid to Mr. Collins for signing the papers.
    “ Q. What was the agreement with Atherden, when he sold out, in respect to putting up the partition ?
    Objected to by plaintiff’s counsel, and objection sustained. The defendant’s counsel excepts. The defendant’s counsel here offers to show that when the plaintiff bought Atherden out, the paper signed by Collins was executed at Atherden’s request, and in pursuance of the agreement between Atherden and Steffens, and the partition was up when Atherden took the premises; and that he (Atherden) having taken the partition down, was bound to and had agreed to put it up when defendant should request it to be done; and that when the plaintiff bought out Atherden, it was part of the agreement that he should perform his (Atherden’s) agreement in respect to the partition.
    “The plaintiff’s counsel objects to the evidence. Objection sustained, and exception taken.”
    
      The evidence also tended to show, that the partition complained of, merely restored said first floor to the condition it was in when Atherden hired of the defendant, and that it was put up a second time, on the 28th or 29th of October, 1857.
    The further evidence bearing upon the questions determined by the Court, sufficiently appear in the opinion of Robertson, J.
    The jury rendered a verdict in favor of the plaintiff and assessed his damages at $590.
    The defendant moved for a new trial and the motion was denied. From the order denying it, and from the judgment entered on the verdict, the defendant appealed to the General Term.
    
      S. Sanxay, for appellant.
    
      Thos. C. T. Buckley, for respondent.
   Robertson, J,

The defendant, prior to November, 1855, held a lease of a store in Maiden lane in this city, which was to expire in May, 1865, and underlet part of the first floor to a Mr. Atherden. The part which he so underlet consisted of the whole of that floor, except a part partitioned off, thereby shutting off an entrance through a front door to a staircase ascending to the upper part of the building. This partition inclosed a hatchway and had a door in it, forming an entrance into the part let to Atherden. Atherden during his occupation took down the partition but agreed to put it up, whenever requested by the defendant; but no lease appears to have.been given to him of the part of the first floor inclosed by such partition, which appears, during his occupation, to have been a common entrance to the rest of the first floor, and the upper part of the building, from which cotton and other goods was hoisted through the hatchway before spoken of. This partition remained down until the 28th or 29th of October, 1857. The plaintiff, before the 14th of November, 1856, bought of Atherden his stock, fixtures, good will, lease and everything. On the last named day, the defendant let to the plaintiff the first floor of the house in question as long as he held his own lease, at a yearly rent of $800 payable monthly, on condition the defendant did not sell the lease, in which case he was to offer the preemption to the plaintiff, and if the latter did not buy it, pay for his good will, stock and fixtures. The instrument letting such premises describes the plaintiff as “lessee and occupant of the' first floor,” and provides that he may “ continue to use and occupy the said premises;” and, I think, there can be no doubt that the legal construction of these phrases is merely that he may continue to use that part of which he was already “ lessee.” The term “ continue ” implies some previous right, and could not fairly be extended to any part not occupied by the plaintiff. It therefore remains to be detérmined of what part he was so in possession or lessee. Atherden, from whom he derived title, clearly had no right of possession to the part inclosed by the partition, and there is no evidence that he transferred anything but his lease which would only carry that which was leased b}r it; if he usurped the possession of the inclosed space, there is no evidence that he transferred it to the plaintiff. The plaintiff, therefore, clearly had no right of possession to the contested inclosure when he obtained the lease from the defendant. He' went into the premises in question two or three days before the lease to him was signed, but there is not a particle of evidence to show of how much he took possession, and it is hardly to be assumed that he took possession of an entrance, to the staircase to the upper stories, constantly in use for hoisting goods. If the lease in question gave the plaintiff an exclusive right to the whole of the first floor, I do not see but what the entrance to the staircase would come within the premises let, and that the defendant would have deprived himself of the use of it and the hatchway, and the right of hoisting goods there through it. But even if the plaintiff had been in exclusive possession of the whole of the first floor at the time of taking the lease in question, I think such possession should have been known to the defendant when he gave the lease. The latter knew that Atherden had no right to the possession of any space within the inclosure, and that the plaintiff had only acquired his rights; any seizure and occupation beyond that should be established to be of that open and palpable character which would warrant the inference of notice to the defendant; he certainly had no reason to suspect such usurpation, while he was allowed to use the staircase and hoistway. But the evidence excluded by . the Court would have made the right of the parties still plainer; the defendant was debarred from showing an agreement by the plaintiff -with Atherden to perform the.promise of the latter to put up the partition at the time he bought him out, which was, at least, an agreement not to take possession of the space to be inclosed.. I am unable to see how a party rightfully in possession of a certain part of. a first floor of a house under a prior lease from the'head landlord; agreeing to shut off that part from the rest by putting up a partition, which his assignor had before agreed to restore; could be presumed to be wrongfully in possession of the residue, so as to give him a right thereto under an instrument agreeing only to continue him in the premises of which he was lessee. This as an action for damages for an eviction, under the evidence given, must necessarily fail; and that which was ¿xcluded ought to have been admitted for the purpose of showing an agreement by the plaintiff, not to take possession of the contested space, as well as knowledge by him of the extent of the rights of Atherden, whose place he took.

If, however, the action be sought to be sustained as one for damages Caused by removing the easement of the light and air of and entrance from the contested part to the residue of the first floor of the premises in question, the evidence excluded would equally have settled that difficulty, because the plaintiff would appear thereby to have agreed to perform the promise of his assignor to put up such partition.

I. have put out of view the considerations that the weight of evidence seems to establish that it was Atherden, in performance of his agreement, and not the defendant, who put up the partition, and that the plaintiff declined to have the partition removed, as well as any arising from the character of the damages assessed.

Upon the ground of the exclusion of the evidence as to the plaintiff’s agreement with Atherden as to putting up the partition, as- well as the refusal to dismiss the complaint, I think the judgment at Special Term should be reversed', with costs.

Bosworth, Ch. J.

I think the evidence offered and excluded pertinent and material, upon the question what the parties understood the phrase, “ the present lessee and occupant of the first floor of house Ho. 166, Maiden lane,” to mean and designate. The word “ lessee,” in this connection, is as significant as the words, “ the first floor.” It is not claimed, that the plaintiff had a lease of all which the words, “the first floor,” would, literally and strictly, include. There is no pretense that the defendant and his lessees were to have no right of passage over it to the upper stories. Then, as the plaintiff was not to have exclusive possession of the whole of the first floor, it was competent to prove what part he was “lessee” of, and what part he was to “ continue to use and occupy ” under the agreement of November 14, 1856. The evidence offered and excluded was admissible on this question. On this ground I agree that there should be a new trial. I think the damages excessive on the evidence before us.

Judgment reversed, and new trial granted, with costs to abide the event.  