
    Peter Kearney, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    1. Railroads—Elevated—Damage to easement—Ground lease.
    In 1863 H., the owner of land on Sixth avenue in New York city, leased it to S. for twenty-one years, with a stipulation that if S. erected a three-story dwelling thereon H. would at the expiration of the term either buy it or grant a new lease for twenty-one years more, and that at the expiration of the lease S., or his assigns, might remove the building. In 1866 S. assigned the lease to plaintiff, and in 1884 H. gave plaintiff a new lease for ten years, in which reference was made to the former lease, etc., and the same conditions made as to purchase and removal of the building. Defendant's road was bui.t in 1878, and this action brought in 1888. Held, that plaintiff was for all the purposes of the action the absolute owner of the building from 1866 and entitled to recover such sum as represented its diminished rental value in consequence of the construction, maintenance and operation of defendant’s railroad.
    2. Same.
    Plaintiff could also recover such permanent injury as he sustained by the appropriation by defendants of such easements as were taken and were appurtenant to the house and a part of it.
    
      3. Same—Landlord and tenant.
    The landlord is entitled to rental damages to premises in the possession of his tenants under a lease made after the construction of an elevated • railroad.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered upon conclusions and findings at special term.
    
      Brainard Tolles, for app’lts; G. Willett Van Nest, for resp’t.
    
      
       Affirming 37 St. Rep., 892.
    
   O’Brien, J.

The judgment in this case contains an injunction restraining the defendants from the continued maintenance and operation of their elevated railway in front of the plaintiff’s premises, No. 738 Sixth avenue, in the city of New York, unless, within the time fixed therein, the defendants pay to the plaintiff the sum of $525, as the price of so much of the plaintiff’s easements, or other property appurtenant to his said premises, as is taken, appropriated or otherwise interfered with by the maintenance and operation of the railway. The judgment also awards to the plaintiff the sum of $1,062, for the injuries to his property sustained during the six years preceding the commencement of the action, with the interest thereon. The questions involved in this appeal are in respect to the plaintiff’s interest in the property. The building is a four-story, brown stone front, the second above Forty-second street, the first story being used as a store and the apartments above fitted up for dwellings. One of the passenger platforms of defendants’ stations extends across the entire front of the building. The nature of the plaintiff’s interest appears from the following facts found by the trial court: On the 1st of May, 1863, Grlovina R. Hoffman, who was then the owner of the land, executed and delivered to one John 0. Sares a lease in writing and under seal, in which her husband joined, whereby she demised to Sares the premises, which it seems then consisted of a vacant lot only, for the term of twenty-one years from that date, at the yearly rent of $250 per year, besides all taxes and assessments.

xThe lease, also, contained numerous conditions and covenants, none of which need. be referred to except the following: It was stipulated that if during the term the lessee should erect upon the lot a dwelling three stories or more in height above the basement, and constructed of brick or stone, the lessor would, at the expiration of the term, either pay to the lessee the just and full value of the house at the time, such value to be ascertained according to a method prescribed in the instrument, or grant a new lease to the tenant or his assigns for a further term of twenty-one years, at a yearly rent to be ascertained as therein provided for. The lease also provided for other renewals thereof, or the purchase of the building, at the option of the lessor, and also that at the final termination of the lease the lessee or his assigns might remove the building on certain conditions if the landlord did not elect to purchase. In March, 1866, the house in question having been then erected, Sares assigned the lease, with all its benefits and obligations, to the plaintiff for the consideration of $8,000. The plaintiff took possession of the premises at the date of the assignment of the lease to him, and has been in possession ever since, either as occupant or landlord. On May 1,'1884, upon the expiration of the lease above described, Mrs. Hoffman, the owner of the ground, executed and delivered to the plaintiff a new lease in which reference is made to the former lease to Sares, the assignment thereof to plaintiff, the expiration of the first term and its surrender to the lessor, and then proceeds to demise the premises to the plaintiff for a first term of ten years, at a yearly rent of $900, with provisions for four renewals of the term of ten years each. It contained the same provisions as the first lease concerning the payment of rent, taxes and "assessments, the mode in which the rental upon any renewal was to be ascertained and the purchase or removal of the building. The construction of defendants’ railway in front of the premises was commenced in January and completed in June, 1878, and this action was commenced October 5,1888. The plaintiff’s title and right of possession must date from the assignment of the lease to him by Sares in 1866. The lessor under the first lease upon the expiration of twenty-one years, in 1884, instead of pm-chasing the building, as she might, elected to grant to the plaintiff a new lease.

The provisiots in the two leases are so connected that the plaintiff’s title when he brought this action must be held to be continuous since 1866, and that the price paid by plaintiff was with reference to the situation then existing. But two points have been argued by the defendants upon this appeal:

1. That as plaintiff took a lease of the premises in 1884, after the construction of defendants’ road, he has no right to substantial damages or an equitable remedy.

2. That the plaintiff cannot recover damages for the period during which the premises were leased by him to tenants.

The first point ignores the fact already pointed out that plaintiff’s title accrued in 1866, and before the construction of the road. The lease of 1884 cannot be deemed a new or voluntary arrangement but a continuation of the lease of 1863, which the plaintiff may have been obliged to enter into in order to preserve liis existing rights. The plaintiff’s rights under the lease of 1884 are but an extension of the rights acquired under the lease of 1863. Ho was, for all the'purposes of this case, the absolute owner of the building since 1866, and we perceive no reason why he was not entitled to recover such sum as represented its diminished rental value, in consequence of the construction, maintenance and operation of the defendants’ railroad. This is not the case of a tenant under a lease made after the road was built, suing for an injury to his possession, but an owner under title acquired before that time seeking to recover for loss of rents. As such owner of the building he could also recover such permanent injury as he sustained by the appropriation by the defendants of such easements as were taken and were appurtenant to the house and a part of it. The trial court found that for more than half the period prior to the commencement of the action for which the rental damage was recovered the premises were in the possession and occupancy of tenants under the plaintiff. The defendants' counsel insists here, as he did in the court below, that no damage should be allowed for this period, as the injury, if any, was inflicted upon the tenant. Since the argument that point has been determined against the defendants in another case. That decision must control the disposition to be made of this case, and we will not attempt to add anything to the reasoning by which the result was reached. Kernochan v. N. Y. El. R. R. Co., 41 St. Rep., 110.

The judgment should, therefore, be affirmed, with costs.

All concur, except Earl, J., not voting.  