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Oelbaum v. Winer

81 Misc. 357 Court New York Special Term, June, 1913.) English

Delivered by *358 Giegerich, J.

Contents

Majority

p. 357
Max Oelbaum et al., Plaintiffs, v. Simon J. Winer et al., Defendants.
(Supreme Court,
New York Special Term, June, 1913.)

Headnote

Easements — right of way by necessity — lease — oral permission without consideration — license — revocable at will.
Where plaintiffs, the lessees of a building having a basement, ground floor and five factory lofts, sublet the basement, ground floor and first floor to defendants, sublet the second loft to another party and occupied the remaining lofts as a shirt factory, and subsequently defendants, who at their own exclusive expense installed two mains to supply water intended for their exclusive use, at plaintiffs’ request, gave oral permission for a connection with one of their mains to furnish water to the second loft upon the express condition that said connection was to be discontinued on their request, defendants were within their rights in cutting off said connection where, after due notice, plaintiffs had failed so to do.
It is well settled that an implied right of way must rest on —no/uK-iaty and cannot be supported merely upon a convenience.
:e the lease to defendants contained no right of ingress ress to a freight elevator running from the ground floor •rving all the lofts, defendants’ oral permission, made .t consideration, for plaintiffs to pass through the ground co the elevator constituted a mere license revocable at
it while it would be more convenient for plaintiffs to 5,000 pounds of material used daily by them taken up down in the elevator than to be carried by the stairway d from their lofts, there was no implied right of way by sity through the ground floor leased to defendants.
on for an injunction pendente lite.
yh Wilkenfeld, for plaintiffs.
„rks & Marks, for defendants.

The plaintiffs seek to enjoin the defendants, first, from interfering with the water pipe supplying water to their portion of the building in - question, and, second, from preventing them and their employees from passing through the ground floor of the premises in question to the freight elevator. The plaintiffs are the lessees of the entire building in question, which consists of a basement, a ground floor and five upper factory lofts. The basement and ground floor and the first loft are occupied by the defendants for stable and laundry purposes under a sublease for a term of years from the plaintiffs. The second loft is occupied by one Tabicco, also a subtenant of the plaintiffs, who conducts a dyeing business on that floor. The plaintiffs occupy the third, fourth and fifth lofts as a shirt factory. There is. a freight elevator running from the ground floor to the top of the building and serving all the lofts. Water is supplied to the building by three mains, two of which the defendants installed at their exclusive expense after they moved into the building, and which they intended for their exclusive use; but subsequently, at the request of the plaintiffs, they gave oral permission for the establishment of a connection with one of their mains to furnish water to the loft occupied by Tabicco. Such permission was given upon the express condition that the connection was to be discontinued at any time upon the request of the defendants. There is still a third water main furnishing water to the building, which pipe was also installed after the defendants took possession, and a part of the expense of which they claim they bore and which they claim was installed for the purpose of furnishing water to the entire building. It is unnecessary to attempt to determine any issue that there may be in the affidavits on this point, however, because it is undisputed that the connection which the defendants

p. 359
threaten to disturb is one leading from the pipes which they installed at their own expense and for their own use, and a connection which they gave a revocable license to have made, which license they have revoked. It is therefore plainly within their rights to cut off such connection, as the plaintiffs have failed to do so after due notice. As the defendants disclaim any intention of connecting this supply pipe of Tabicco’s with the main from which the plaintiffs draw their supply of water, there seems to be no necessity for any injunction in this branch of the case. It remains to consider the question of the plaintiffs’ right to use, for themselves and their servants, the ground floor for the purpose of going to and from the elevator. It is stated without contradiction that they use a total daily quantity of material weighing about five thousand pounds. Unless this can be taken up and down in the elevator they will have to carry it by the stairway to their lofts, the lowest one of which, as before stated, is the third. . Under these circumstances they claim an easement of necessity through the ground floor leased to the defendants, although there was no reservation of such a right of ingress and egress in the lease which they executed to the defendants. It is well established that an implied right of way must rest upon necessity and cannot be supported upon a convenience merely. Bauman v. Wagner, 146 App. Div. 191 ; Staples v. Cornwall, 114 id. 596; Paine v. Chandler, 134 N. Y. 385 , 388; Burlew v. Hunter, 41 App. Div. 148 ; Hill v. Bernheimer, 78 Misc. Rep. 472 . In the present case it would unquestionably be more convenient if the plaintiffs could pass through the ground floor to and from the elevator for the purpose of carrying their goods; but it cannot be said that such right of way is a matter of necessity, any more than it was in some of the cases above cited. Such permission as the defendants gave
p. 360
to the plaintiffs to pass through their portion' of the building was oral and without consideration, and at most constituted a license revocable at will and which they have revoked. The motion for an injunction is therefore denied, with ten dollars costs.

Motion denied, with ten dollars costs.

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