
    Harry Greenblatt, Appellant, v. Annie Zimmerman, Respondent.
    First Department,
    May 14, 1909.
    Landlord and tenant — lease construed — right to use cellar—injunction — practice where lease has expired at time of appeal.
    Where a store was leased “to be occupied and used as a restaurant with the appurtenances,” and the lessee continued to use part of the cellar for the same purpose for which it had been theretofore used by the lessor in the same business until prevented from further use by the action of the lessor, the right to occupy the same to the extent necessary to store coal to be used in conducting the restaurant business was appurtenant to the lease of the store, and such lease not having expired at the. time the action was tried, the lessee is entitled to an injunction restraining his landlord from interfering with the right to the use of the cellar. 1
    But where the term has expired at the time of an appeal no injunctive relief can then be awarded and the proper disposition of the case is to send it to the jury calendar to assess plaintiff's damages in case the defendants should demand a jury trial.
    Appeal by the plaintiff, Harry Greenblatt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 10th day of April, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.
    
      Hillquit & Hillquit, for the appellant.
    
      Samuel Hoffman, for the respondent.
   Laughlin, J.:

On the 9th day of July, 1903, the defendant either owned or was in possession — the record does not disclose which — of premises Ho. 96 Sheriff street, borough of Manhattan, Hew York, upon-which then stood, a tenement house consisting of a basement or a cellar, store on the ground floor and four stories above, with four apartments on each floor. Each tenant heated his own apartment and the cellar was so subdivided that each tenant had a separate bin for coal. The entire cellar was used for the storage of coal for the tenants of the building, with the exception of about one-quarter of .the space which was rented to one Liebling, who used the same, having an entrance from the street, in conducting his business as a dealer in coal and wood. On that day the husband of the. defendant executed a lease in writing to the plaintiff which, with respect to the part of the premises leased and the purpose and term for which the same were leased, recites as follows : The store, -together with the extension in. the yard in premises No./ 96 Sheriff1 Street, Borough of Manhattan, City of New York, to be occupied and used as a restaurant, with the appurtenances, for the term uE four years, ten and a half: months from the fifteenth day of July;,_ 1903.’ The plaintiff took possession under the lease, which was duly ratified in writing by the defendant on the 30th day of December’ 1903. At the time the lease was executed and the plaintiff took possession thereunder, either the defendant or her husband was conducting a restaurant in the store part of the building, which was sold and delivered to the plaintiff at the time that the lease was executed. The object of plaintiff in obtaining the lease was1, to continue that business. The defendant or her husband used a particular part or bin in the cellar for coal in conducting the restaurant business, in which large quantities of coal were necessarily consumed., and there was on hand at the time the lease was made about one ton of coal which the plaintiff purchased. The plaintiff, after engaging in the restaurant business on the premises, continued to use this part of the cellar in which the coal which he. purchased of ' defendant or her husband was, and which had been used by the defendant for the storage of coal to conduct thé restaurant business until the 6th day of March, 1907,. when he was excluded therefrom by a marshal acting under a dispossess warrant issued out of the Municipal - Court, fifth district, On application made by the defendant, which, .however, was subsequently vacated and .the dispossess proceeding discontinued. The defendant, however, having determined to alter •the cellar into a pool room, persisted' in holding possession and through her agents and servants tore down thé' partitions forming the various bins'and removed the same, together with the coal which the plain tiff then had .stored in the cellar. 1 .

• This1 action- is. brought, among other- things, to enjoin the defendant from converting the cellar into a pool .room during the term :of the- lease, and from' interfering with the plaintiff in the enjoyment of his rights secured by the -lease, including the right to use the cellar for the storage of coal which he claims to be a necessary appur- • tenant to the lease. There are other allegations with respect to work in the. front and rear of the premises, upon which the plaintiff claims equitable relief, but- in these respects we think the action could not be maintained. We are of opinion, however, that the right to occupy the cellar to the extent necessary to store coal necessary to be used in conducting the restaurant business was appurtenant to the lease of the store, and the lease not having expired at the time the action was tried, the ■ plaintiff was then entitled to injunctive relief, restraining his landlord from an unwarrantable interference with him in the exercise of his contractual rights.

The extension in the yard to which reference is made in the lease was a separate one-story building, fourteen by twenty feet, which evidently had been constructed for and was used only for the storage of vegetables and provisions in connection with the restaurant. There is no merit in the claim that the plaintiff might have used this building for the storage of coal. It appears that it was never used for that purpose and that it would have been inconvenient and expensive to have carried the coal to it. Moreover, it appears that the defendant, by excavations made in the yard, had undermined this extension, so called, so that one wall had fallen in. The practical construction of the parties placed on this lease during nearly four years of the term is entitled to great -weight, and we are of opinion that the fair construction of the lease, in view of the practical construction placed upon it by the parties, is that the tenant was to be entitled to use the cellar for the storage of coal for use in the restaurant.

The term “ appurtenances ” in a lease includes everything which is necessary and essential to the beneficial use and enjoyment of the thing leased or granted.” (Stevens v. Taylor, 111 App. Div. 561.) It was essential to the enjoyment of the lease that the tenant should have a suitable and convenient place for storing coal. It appears that the business required .the consumption of about two tons of coal each month. It would be absolutely unreasonable to expect the tenant to store the coal in- the restaurant or in the yard or to buy it daily by the sack at a much higher rate than by the ton. It was evidently contemplated that he should store it where it had been stored and he was entitled to an injunction to prevént his landlord from interfering with and! trespassing upon his rights. The term having now expired no injunctive relief can be awarded and doubtless the cause must be sent to the jury calendar to'assess plaintiff’s damages if the defendant should demand a jury trial. .(McNulty v. Mt. Morris Elec. Light Co., 172 N. Y. 410.)

It follows, therefore, that the1 judgment should be reversed' and . a new trial granted, with costs to appellant to abide -the event.

Patterson, P. McLaughlin, Houghton and Scott,. JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant; to abide event. - -  