Duhain v. Merwood, Jaccard & King Jewelry Co.

Gtegerich, J. On the 10th day of June, 1905, the plaintiff, by a written lease,- let to the defendant a small store on the northerly side in the basement of the building known as Ho. 400 Fifth avenue^ in the city of Hew York, such store being known as a stoop store, for a term of four years ten months and twenty days, beginning June 10,1905, and ending May 1, 1910, at a rent of $2,200 per annum for the first year ten months and twenty days and for the three remaining years of the term at a rent of $2,400 per annum. The defendant entered into possession and continued in possession of the premises until the expiration of the term, but has not paid any rent for the last three-quarters of the term, 'and this action is brought for such unpaid rent, amounting to $1,800 and interest amounting to $153. The building in which the store in question was located had originally been what was known as a high stoop private residence, the first or lower floor of which, known as the basement, was [425] beneath, the- level of Fifth avenue, on which it • fronted, and tibe stoop store in question was located in that part of the building which had formerly constituted the basement hallwqy, the dimensions of the store within the building being twenty-two feet deep and about seven and one-half feet wide. Appurtenant to the premises was a stoop or flight of steps which commenced on Fifth avenue fourteen feet fro-m the house line and extended to the house line, being connected with the house at a height of not more than seven feet above the street level on Fifth avenue. This stoop was used and intended to be used as an approach and means of access directly from the street to the first floor of the building above the basement floor, -and the only means of access to the stoop store from Fifth avenue was to descend from the "street to the south of this stoop and proceed toward the house line of the building, a distance of about fourteen feet along a sunken areaway in front of the building and then to turn northward into an opening under the stoop, which opening was under the highest part of the stoop and immediately adjoining the house line. The under portion of this stoop was completely inclosed and. had glass windows both on the north and south sides, which windows and the space back of them were used for display purposes and had been so used without any objection from the public authorities of the "city of 2few York for upward of twenty years prior to the making of the lease. In April, 1908, the board of estimate and apportionment of -the city of Kew York, in the exercise of authority vested in it, directed that the width of the carriageway and sidewalks in Fifth avenue for a number of blocks north and south, including the block in which the property in question was located, be made wider, and also directed the removal of all incumbrances and encroachments interfering with the process of so widening the carriageway and sidewalks. After making diligent but unsuccessful efforts to procure a delay in the enforcement of this • requirement with respect to the premises in question, the plaintiff complied with the requirements of the city authorities and removed the portion of the premises which encroached upon the street and put in a new store front for [426] the store in. question on the building line. In order to save the frontage of the store for display purposes an entrance in the form of a small open vestibule was constructed between the store in question and the next store on the south, the space for such vestibule being taken almost entirely from the store on the south, and out of .this entrance a door was placed leading northward into the store in question, such door being slightly .aslant so that it formed the hypotenuse cf a right-angled triangle, the other two sides being, one aline about a foot long on the street frontage and the other being a line about two feet long measured back on the side line. The defense is that there was an actual partial eviction by the act of the landlord, and consequently that rent for the entire premises was suspended during the period of such partial eviction. Christopher v. Austin, 11 N. Y. 216. So far as concerns the removal of the stoop which formed an encroachment in the street, that having been removed by virtue of the superior title'of the city, and there being no express warranty against the exercise by the city of its power to remove or direct the incumbrance to be removed, the act of 'the city authorities in directing the removal of such incumbrance did not exonerate the tenant from paying rent (Gallup v. Albany R. Co., 65 N. Y. 1, 5), although, perhaps, it might be a basis of apportionment in a proper case if an apportionment were asked, which is Dot done here, and the fact that the incumbrance was removed by the landlord instead of his waiting until the city removed it does not affect the situation. Gallup v. Albany R. Co., supra; Campbell v. Porter, 46 App. Div. 628. It remain® to consider whether the fact that a small triangle of the premises thrown by the arrangement of the new doorway into an entrance instead of being left in the body of the store constituted an actual partial eviction, with the consequent suspension of the rent of the whole premises. In this connection it should be mentioned that there was testimony, which I credited, that the value of the. store after -the alterations and with the stoop removed was greater than the value in its original condition, owing largely to the fact that there was much more convenient access. After the removal of the stoop through [427] which the former entrance to the store led, it was necessary for the landlord to provide a new entrance. If he had such an entrance through the front of the store the door would have occupied -a large portion of the frontage, which was very valuable for display purposes. Instead of that, a door was put in at such an angle as to cut off as little as possible of the frontage and at the same time give convenient and obvious access. It was proven, furthermore, that the superficial area of the portion of the store within the building line was increased by the alterations owing to the removal of some walls, and it was also proven that the store was more valuable in its altered condition than in its original condition. So far as the entrance is concerned, the tenant was given an entrance with the sacrifice of the least possible space, both of frontage and of area, receiving the benefit for the purpose of access to his store of considerable space that was taken out of the next store to the south. The space that was taken from his store, being about a foot in frontage and extending back to a point about three feet in the rear, was so small that it might be disregarded under the maxim de minimis non curat lex, but I do not think it is necessary to rest the decision upon that principle,' because such slight space as was taken from his store proper was devoted to his own use as an entrance, and, as above shown, was advantageously adapted to the situation and needs of the store. There should be judgment for the plaintiff, with costs. Let proposed findings be exchanged and submitted on two days’ notice, together with any memoranda relating to their settlement which the parties may choose to submit. Judgment for plaintiff, with, costa.