Baldwin v. Morgan — 6 N.Y. St. Rep. 519

Majority

p. 519

Theodore F. Baldwin, Resp’t, v. Thomas Morgan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 22, 1887.)

Headnote

Landlord and tenant—Rights of tenant to use walls for advertising.

A tenant by his lease acquires the right to use the outside of the walls enclosing the demised premises for advertising. The scenes or pictures must not be unseemly or offensive. There being no restrictions in the lease, the tenant succeeds during his term to the use of the wall subject only to the right of the landlord to prevent waste. Following Biddle v. Dittlejield, 53 N.H ., 503.

Appeal from an order continuing an injunction.

John M. Bowers, for app’lts; De Lancey Nicoll, for resp’t.

The plaintiff, who is a tenant of the defendants, occupied the first story and basement of their premises known as 1159 Broadway, and forming part of the southwest corner of Broadway and Twenty-seventh street.

The premises were occupied by the plaintiff under two leases, by one of which the plaintiff leased the store for the sale or leather goods, and the other secured the basement under the store for the storage of manufactured leather goods. For the more successful prosecution of his business, the plaintiff caused to be painted on the Twenty-seventh street wall of the first story of the building which was embraced within his lease, as we have seen, certain pictures, signs and devices which he regarded as suitable and appropriate for the advertising of his wares. The pictures are somewhat original in their application, striking and impressive, and they seem to be well drawn, and to have been executed by a decorative painter of ability. The defendant Thomas Morgan, who represented the defendants, threatened to erase the pictures suggested, and the plaintiff, claiming that if the threats were carried into execution he would be injured in his business, procured an order restraining the defendants from interfering, with the signs and pictures mentioned, and requiring the defendants to show cause why the restraint should not be made permanent.

Upon the hearing, the defendants insisted that their premises were injured by; the signs or pictures, but the court determined to continue the injunction, and hence this appeal.

The proof establishes that the paintings or signs did not extend beyond the premises leased to the plaintiff, and the leases contained no restriction as to signs. The contention of the defendant seems to be that that portion of the outer wall enclosing the plaintiff’s premises is not leased, and

p. 520

that the paintings or signs have decreased the rental value of the premises. The wall, as it exists, is certainly a portion of the premises which were demised to the plaintiff,- and he succeeded during his term to the use of that' wall under his lease, subject only to the right of the landlord to prevent waste, as contended by the respondent’s counsel.

It is said in Taylord on Landlord and Tenant, page Iff 2, that a tenant by-me right of exclusive occupation becomes entitled to the premises in the same manner as the owner, except that he must do no act to the injury of the inheritance. In Wood on Landlord and Tenant, section 581, it is said that unless special reservation in certain particulars is made, the tenant succeeds to all the rights of the landlord. That they are annexed to the estate so far as the possession and enjoyment of the premises are concerned, immediately upon the commencement of his term, and it seems that an injury to the inheritance or heirs, must be some permanent or material alteration rendering it difficult, if not impossible, for the tenant when his term expires to surrender the premises in their original condition. 3 Paige, 260.

The precise question which may be regarded as presented for consideration in this case, namely, the right of the tenant to use the outside wall of the premises demised to him, for advertising purposes, has not been decided in this state. It has been, however, in a very well considered case in New Hampshire, which is reported in the 53d N. H., p. 503, under the title of Riddle v. Littlefield. There it appeared that the defendant had leased the outer side of the wall to three persons for advertising purposes. The plaintiff claimed the amount of rent received by him for the use of the outside wall, and the question was as to his right to recover.

The courts held that the tenant had acquired by his lease the right to the use and occupation outside the walls of the building to that portion of the tenement which included the store. The outside wall of the building leased passed by the lease as much as the inside of the wall. The outer side of the wall, said the court, is but one side of the same wall that has a near side, and the removal of the wall removes both sides, and it was further said of the .tenant “he may suspend his wares upon the building, if nobody is incommoded thereby, and he may cover the wall with his advertisements of merchandise which he keeps for sale there, if he does not injure the building or obstruct the passage, or even the public eye by unseemly occupations or otherwise violate the laws.” This doctrine is stated in Silvan on Landlord and Tenant at page 48.

The scenes or pictures being germane to the plaintiff’s business, and not being unseemly or calculated to' offend

p. 521

the public eye and being indeed rather attractive and amusing, it would seem that the defendant must submit •to the inconvenience, if there be any, of the continuance of these signs or pictures. The record does not disclose any predominating facts favoring interference with the plaintiff’s rights in the manner in which they have been exercised, and we are not called upon, therefore, to reverse the order appealed from, which we think should be affirmed, but as the question is novel with ten dollars costs and disbursements to abide the event.

Daniels and Van Brunt, JJ., concur.