Page images

and 120 New York State Reporter Quackenbush & Wise (Arnold Wedemeyer, of counsel), for appellants.

Daniel S. O'Brien, for respondent.

GIEGERICH, J. The plaintiff sold to the defendants certain hose upon the guaranty that "it will pass inspection of the fire department and underwriters.' It appears from the uncontradicted evidence of witnesses called for the defense that the fire department could not approve the hose, because it failed to conform to certain of its requirements; but the plaintiff insists that the defendants are nevertheless liable, because the hose had not been officially rejected by such department after a proper test made. We cannot, however, yield our assent to this contention, since it would have been an idle ceremony to request such department to pass upon goods purchased by private citizens for their own use, and which the undisputed evidence shows could not, under its rules and regulations, be approved. The defendants, under the terms of the sale, as we construe them, were entitled to hose that would meet all the requirements of the fire department and the underwriters, which is only another way oi saya ing such hose as would pass their inspection. If they had nominal requirements, which were not enforced, it was for the plaintiff to show that fact. Inasmuch as hose of the description called for was not proven to have been delivered, the judgment was erroneous, and must be reversed, with costs to the appellants to abide the event.

Judgment reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.



Premises were leased for the business of confectioners and caterers and for dwelling purposes. In a portion of the basement used as a kitchen was a window opening onto an adjoining lot, also owned by the landlori; and in the water-closet was a ventilating shaft, also opening on such lot. By an extension of the building on this latter lot the landlord shut off light from the window and obstructed the shaft. Held not a constructive

partial eviction, constituting a defense to an action for rent. Appeal from Municipal Court, Borough of Manhattan.

Actions by Solomon Solomon against John Fantozzi and another. From judgmients for plaintiff, defendants appeal. Aflirmed.


Roger Foster, for appellants.
Mandelbaum Bros., for respondent.

GREENBAUM, J. Plaintiff brought three successive actions for the recovery of rent of the building on the southeast corner of Sixth avenue and Fifty-Fifth street in the borough of Manhattan for the months of July, August, and September, 1903. The premises were leased by plaintiff to defendants under a written lease for "their business as confectioners and caterers and dwelling purposes," at the yearly rent of $4,300, payable in equal monthly installments. The defendants were in occupancy of said premises at the time of the execution of the lease, and continued in possession during the months for which the recovery of the rent in these actions was brought. The defense in each case was “a constructive partial eviction.” It appears that the plaintiff was also the owner of the premises on Sixth avenue adjoining those leased to defendants on the south. The properties in question were distinct, separate, and independent of each other. When the lease was executed, a room in the basement, used by defendants as a kitchen, was lighted by a window overlooking the adjoining lot, owned by the plaintiff; and there was also in the basement a watercloset, which was ventilated by a shaft of galvanized iron opening into the same lot. At the time of the execution of the lease the building on the adjoining premises did not extend to the depth of the building leased to the defendants. Thereafter the plaintiff began alterations upon his adjoining property, which included the extension of the building thereon to such a depth that the extended wall on the north side of the altered building kept away the light that had theretofore come into the basement window of defendants' premises. The improvements also necessitated the placing of a board over the opening of the ventilating shaft, thus interfering with the ventilation of the watercloset. This deprivation of light and air is claimed to constitute a partial eviction.

Unless the light and air of which the defendants were deprived were necessarily involved in the beneficial use of the premises by the lessees as an appurtenant to the lease, the defense must fail. The case of De Baun v. Moore, 32 App. Div. 397, 52 N. Y. Supp. 1092, affirmed in 167 N. Y. 598, 60 N. E. 1110, on the opinion of the court below, where the precise question here presented was passed upon, seems to be decisive, and renders it unnecessary to review the authorities. The court there said:

“We think the law is clear in this state that, if one grants a house having windows looking out over vacant land, whether his own or otherwise, he does not grant therewith any easement of light and air, unless it be by express terms; it never passes by implication"-citing cases.

The fact that in the De Baun v. Moore Case the ownership of the two adjoining lots was severed, and that the question arose between adjoining owners, instead of, as here, between landlord and tenant, is wholly immaterial. Some of the authorities relied upon in the case from which the quotation has been made were cases where the question arose between landlord and tenant. Myers v. Gemmel, 1o Barb. 537; Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629; Palmer v. Wetmore, 2 Sandf. 316. The authority of Myers v. Gemmel—a case often cited—has never been shaken. The English doctrine of ancient lights has never been adopted in this state, and has been generally repudiated in this country. In those states where this doctrine has been rejected the courts have consistently refused to recognize implied easements of light and air. Washburn on Easements (4th Ed.) p. 657. The cases relied upon by the appellant-Matter of Hall v. Irvin, 78 and 120 New York State Reporter App. Div. 107, 79 N. Y. Supp. 614, and Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059—in no way affect the question here considered. In Snow v. Pulitzer an easement of support, if the case is to be treated as one of easement at all, was involved—one totally different from that of light and air. The case, however, was treated regardless of the question of easement. The court said that they were dealing with a case "where all the buildings were held and owned as one entire property.” The buildings were known as “French's Hotel," and had previously been three separate buildings, with independent walls. It was held that the plaintiff, as lessee, if the wall of the building leased by him was insufficient to stand alone, became entitled to the support of both walls, and the landlord "would have no more right to take down the supporting wall than he would to tear down the demised building itself.” Hall v. Irvin was a case of interference by a landlord with the use by the tenant of certain appurtenances held to pass with the lease of offices in a large office building covering several city lots, where the appurtenances unmistakably applied to the various tenants of the building, and formed a part and parcel of the building conveniences. These cases are in no sense authorities for the proposition that, where the same person is owner of adjoining lots, covered by separate, independent, and unconnected buildings, any implied easements of light and air will flow in favor of the tenants of one of the buildings from the premises adjoining. The dimensions of the plot of land do not enter into the discussion in the slightest degree. The question is, did the common owner appropriate to the use of the building demised any portion of the adjoining premises, also belonging to him? This distinction is pointed out in the case of Doyle v. Lord, 64 N. Y. 432, 439. Under the views expressed it is unnecessary to consider the other questions raised by appellants.

The judgment must be affirmed, with costs. All concur.


(Supreme Court, Appellate Term. February 23, 1904.)


A plaintiff who is financially responsible has the right to compromise the suit on the eve of trial without the knowledge or consent of his attorney, and without making any arrangement for payment of his fee, and the attorney's lien attaches to the proceeds of the compromise, rather than to the cause of action, which is terminated by the settlement; so that an order permitting the dismissal of the case only on plaintiff's paying his attorney, and authorizing the attorney, in case he is not paid, to prosecute the ac

tion to final judgment, is erroneous. Appeal from City Court of New York, Special Term.

Action by Isidore Witmark against Frank L. Perley, in which Benno Loewy, plaintiff's attorney, petitions for the determination and enforcement of his lien upon the cause of action. From an order granting the prayer of the petitioner, the plaintiff appeals. Modified.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

A. S. Gilbert, for appellant.
Benno Loewy, in pro. per.

GIEGERICH, J. The plaintiff, on the eve of trial, without the knowledge or consent of his attorney, and without making any arrangement for the payment of the attorney's fee, compromised his claim of $744.53 against the defendant for the sum of $350, and moved to compel the latter to consent to a discontinuance of the action. The attorney made a cross-motion by petition, praying that the court determine and enforce his lien upon the plaintiff's cause of action. The court below, at Special Term, granted the petition, and fixed and determined the amount of the respondent's lien upon the plaintiff's claim and cause of action at the sum of $222.17, which the plaintiff was directed to pay within three days; and ordered that, upon such payment being made, the action be discontinued, but, if payment was not so made, that the attorney be at liberty and be authorized to continue and prosecute the action to final judgment, and to enforce such final judgment to the extent of his lien. The appellant insists that, since the plaintiff is financially responsible, and the attorney is not in danger of being defrauded of his fees and disbursements, the client had an absolute right to settle the case, which proposition is sustained by the authorities. Poole v. Belcha, 131 N. Y. 200, 30 N. E. 53; Young v. Howell, 64 App. Div. 246, 72 N. Y. Supp. 5; Cohn v. Polstein, 41 Misc. Rep. 431, 84 N. Y. Supp. 1072; Pomeranz v. Marcus, 40 Misc. Rep. 442, 82 N. Y. Supp. 707. The case having been settled, the attorney's lien attaches to the fund produced by the settlement, and is necessarily extinguished against the cause of action, which is no longer in existence. Fischer-Hansen v. Brooklyn Heights Ry. Co., 173 N. Y. 492, 66 N. E. 395; Fenwick v. Mitchell, 34 Misc. Rep. 617, 70 N. Y. Supp. 667; Zimmer v. Met. St. Ry. Co., 32 Misc. Rep. 262, 65 N. Y. Supp. 977. The respondent urges that there was an element of fraud in the case such as the courts found to exist in National Exhibition Company v. Crane, 167 N. Y. 505, 60 N. E. 768, where it was said:

"Dishonest and collusive settlements, made with intent to defraud the attorneys upon either side, are reprehensible, and should be condemned. The plaintiff asked for relief founded on a settlement of the latter character, and the court had the power to refuse to stain its records by an entry based upon fraud."

In the present instance, however, we fail to find any evidence of fraud, and therefore the settlement must stand, and the plaintiff's lien must attach to the fund received in compromise, which is more than sufficient to cover the amount claimed by him. It follows, therefore, that the portion of the order appealed from which imposes conditions upon granting the motion for a discontinuance and authorized the respondent, in the event that the sum awarded should not be paid, to prosecute the action, was unwarranted, and to that extent the appeal is well taken.

The appellant also urges that the amount awarded by the court was too great, and in this we agree. In our opinion, the sum of $170, which amount the respondent, in his first letter to the plaintiff, offered and 120 New York State Reporter to accept in full payment, is adequate compensation. The order should therefore be modified, as above indicated, and, as modified, affirmed, without costs.

Order modified, as above indicated, and, as modified, affirmed, without costs. All concur.


(Supreme Court, Appellate Term. February 23, 1904.) 1. STREET RAILWAYS-INJURY TO PASSENGER BOARDING CAR-VEGLIGENCE


Evidence in an action for injury to a passenger on a street car, struck by a pillar in the street just after he had got on the car and while he was on the running board, held insufficient to show an absence of contributory

negligence and negligence of defendant. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by John J. Cusick against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

Henry W. Goddard and William E. Weaver, for appellant.
James E. Smith, for respondent.

FREEDMAN, P. J. This is an action for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The plaintiff was the only witness narrating how the accident occurred, and his testimony fails to establish any negligence on the part of the defendant. In his verified complaint he alleges that, after signaling a car of the defendant to stop, which it did, and just as he attempted to board the car, and with one foot on the first step of the rear platform, the car was suddenly started, and he was hurled violently against a pillar of the elevated railroad and injured. The car was an open one. His testimony as to how the accident occurred is substantially as follows: "I had one hand on the car and one foot on the running board, and before I had the other one up I hit the elevated pillar.

The car was going, and I had one foot on. I had one foot on the running board, and before I had the other foot on the car I was knocked off by the elevated pillar, and that is all I know.” Again, he says: "The car started between the time I attempted to get on and the time I was hit by the elevated pillar.” He further stated that the pillar against which he was thrown was the second one north of Sixty-Third street, that the car had gone beyond the first pillar north of the crosswalk at Sixty-Third street before stopping for passengers to board it, and that the pillars were from 25 to 40 feet apart. A lady who was with the plaintiff got on the car before the plaintiff, and whether the car started before he had an opportunity to get aboard, and he attempted to get on the moving car, and, if so, at what rate the car was then moving, or whether he had got aboard the car before

« PreviousContinue »