
    Alfred Cooley et al., App’lts, v. William A. Cummings, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    Landlord and tenant—Rights of tenants—Injunction—Grounds for equitable interposition.
    Where a landlord in renting premises, as part of the lease, gives the tenant the right to the use of a water closet in another part of the building, and also the right to use another portion of the building to store fuel, etc., and afterwards the landlord puts up a double iron gate of the height of about seven feet across the only passage way leading from the tenant's premises to said water closet, and to the other portion where the fuel is to be stored, and thereby barred the tenant and his employees from going to said closet and to the place where the fuel is stored: Held, that equity will interpose, by mandatory injunction, to compel the landlord to take down said gate. The grounds for equitable interposition in such a case are two-fold. First, the inadequacy of any legal remedy to secure the party in the enjoyment of his right to use the premises; second, to prevent a multiplicity of suits for damages arising from the daily and the continuous erection of said gate.
    Appeal from a judgment of the special term dismissing the complaint.
    
      Jacob Fromme, for app’lts; J. H. Whitlegge, for resp’t.
   Brady, J.

This action was brought to restrain the defendant from preventing the plaintiffs’ use of a water closet and croton water, the use of which was secured by-lease, and from interfering with them in the use of the fifth floor of the premises designated in the complaint as a part of the demise covered by the lease.

In addition to this relief the plaintiffs demanded judgment for the damages occasioned by the wrongful acts of the defendant in interfering with the full enjoyment of the premises in the manner designated in the complaint.

When the issues came on for trial at the special term, the counsel for the defendant demanded a trial by jury. The demand was resisted, and thereupon the plaintiffs, in order to defeat the object of the defendant, elected to waive all claim for damages, and struck out the prayer therefor from the complaint. When that was done, the counsel for the defendant moved to dismiss the complaint upon the ground that it did not contain facts calling for the equitable intervention of this court, and on the further grounds that the facts set out in the complaint did not constitute a cause of action. The motion was granted, and hence this judgment and appeal.

The lease secured to the defendants in express terms the demise, particularly stated, and also the right to the use on the third floor of the building, of the water-closet, and croton water, and the right to use the fifth story of the building to store fuel, etc., and the allegation as to the violation of the right thus secured was that the instrument, to which reference has been made, was executed with the express understanding, intention and agreement of the parties that the plaintiffs and their employees should continue to use said water-closets and croton water during the continuance of the term and the" extension thereof provided for in instrument, and should at all times while at work in the night time, as well as in the day time, have free and undisturbed access to and egress from said water-closet and croton, and to the fifth floor for the necessary use and enjoyment of the same, for the purposes mentioned, and that without such uninterrupted access and egress at the night time until eleven o’clock, the plaintiffs could not peaceably and quietly have or hold and enjoy the premises, or carry on their business, without daily and continuous loss, damage and irreparable injury. And, further, that the defendants well knowing the premises, and, against the will and protestation of the plaintiffs, erected, and caused to be constructed and erected, a double iron gate of the height of seven feet, or thereabouts, across the only passage way leading from the plaintiffs’ premises to the water-closet and croton water on the third floor, and to the fifth floor, on which gate he put two patent padlocks, the keys of which he kept and retained from the plaintiffs and their employees, and thereby wholly barred therefrom the plaintiffs and their employees, necessarily having occasion several times during the day and night to visit said water-closet and croton water, as well as from the said fifth floor.

The only proposition which it is at all necessary to consider, made on behalf of the respondent in order to sustain his judgment, in that allegation in reference to the erection of the iron gate, avers the interruption of one way only leading to the floors above, and this in connection with the proposition that the court would take judicial notice of the building laws of this state, which requires that means must be provided for reaching the upper floors by means of a stairway, and further that it is not alleged that the passageway is the only means afforded by which to reach the closets, etc., and that the plaintiffs make no pretence that they could not get to the closets by stepping outside of the room to the main stairway, and by that mode reach the floors above.

The answer to this seems to be simple. The motion to dismiss the complaint was made upon the ground that there were no facts calling for equitable intervention, and that the facts stated did not constitute a cause of action. The allegation is distinctly made that the gate was erected across the only passageway leading from the plaintiffs premises to the water closet and croton water on the third floor, and to the fifth floor, and that the construction of this barrier, wholly barred the plaintiffs from visiting the water closet and the croton water. Assuming that the court would take judicial notice of the necessary staircase in the building, which is not conceded, the written instrument being a demise, might be of such a character as to confer no privilege upon the lessee of the use of the staircases, and might confine him to the use of such means of access as were within its precise terms and limits, and that seems to be the effect of the demise of the lease herein and the allegations. lío doubt whatever exists that the demise embraces the use of the croton water and of the water closets and the fifth story, or of the existence of a passageway leading from the premises of the plaintiff to the water closet and croton water privilege, or of the construction of the barrier across the passageway preventing its use.

Indeed the erection of the gate proves that access could be had in that way. And, these facts when considered with the further allegation made, namely, that the gate wholly barred the plaintiff from the use of the water closet and the croton water, it becomes clear that a cause of action was stated. We are dealing now with the written instrument and allegations of fact connected with it, and we are not permitted therefore to wander into the field of presumption and suppositions, but are confined to the limits just mentioned; non constat, but that on the trial it would appear, that the plaintiffs were not as alleged confined within the limits expressed, and that there were other modes of access to the water closet on the third floor and to the fifth floor which they would have the right to employ. But that would necessarily be a matter of proof to be given upon the trial.

Under the allegations as indicated, it would be improper to assume that other modes of access were given plaintiffs which they might have employed without inconvenience. The suggestion therefore that the complaint did not contain facts constituting a cause of action is not sustained, nor is the _ proposition that the complaint does not contain facts calling for equitable intervention a good one. It certainly is not necessary to cite authorities to show that the continuous interference of a landlord with the rights of his lessee presents a subject for equitable cognizance. But if it be, reference is made to Williams v. N. Y., etc., R. R. Co. (16 N. Y., 111); Wheelock v. Noonan (10 Cen. Rep., 514); see also Murdock v. Prospect Park R. R. Co., 73. N. Y., 579; Underwood v. Burrows, 7 C. & P., 29; High on Injunctions, §§ 343, 772.

The grounds for equitable interposition in a case like this are, first, the inadequacy of any legal remedy to secure the party in the enjoyment of his right; and second, to prevent the multiplicity of suits for damages accruing. See Corning v. Troy, etc., Factory, 40 N. Y., 191.

The waiver of damages did not affect the right of the plaintiffs to the equitable interposition of the court to protect them in the enjoyment of their demise.

No authority has been cited to sustain such a proposition and none has been found.

The judgment should therefore be reversed and a new trial granted, with costs to the appellants to abide the event. Daniels and Bartlett, JJ., concur..  