Misc.] Supreme Court, Appellate Term, February, 1904.

MAGGIE RIEHL, Respondent, v. LEON LEVY, Appellant.

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

Attorney and client-Client cannot abandon a case arbitrarily and recover of the attorney what she has paid him in advance.

Where a client retains an attorney to bring an action for her and consults with him in regard to it but abandons the case before issue of the summons without giving any sufficient reason therefor, she cannot recover of him a payment which she made him in advance in full of his services where he has rendered all the services he could and is ready and willing to go on with the case.

APPEAL by the defendant from a judgment rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

Leon Levy, appellant, in person.

Rosalie Loew Whitney, for respondent.

GILDERSLEEVE, J. The pleadings are oral.

The com

plaint is "wrongful detention, money had and received." The answer is a general denial." The facts appear to be substantially as follows: The plaintiff desired to bring an action for slander against one Ernest Smith. The defendant is a lawyer, and plaintiff called at his office, and gave him, as defendant swears, the following written retainer, viz.: "I hereby retain Leon Levy to begin proceedings for malicious slander against Ernest Smith. (Sd.) Mrs. Maggie Riehl." It is true she swears that she never signed this retainer, but she admits that she did retain defendant to bring action. against Smith. Upon the same day, she paid defendant ten dollars, and received the following receipt: "Received from Mrs. Maggie Riehl the sum of ten dollars, on account of. agreed counsel fee. Balance $90. Leon Levy."

Defendant swears, and plaintiff admits, that he told her the case would be a difficult one, and that he would charge

Supreme Court, Appellate Term, February, 1904. [Vol. 43.

her $100. Later, but on the same day, she brought him $90, and he gave her a further receipt as follows: "Received payment in full for services. Leon Levy."

It is, therefore, established that the $100 were paid, in advance, for services to be rendered in the action against Ernest Smith. The plaintiff desired to have said Smith arrested, and defendant prepared the papers to obtain an order of arrest, and told plaintiff to bring two sureties to go on the undertaking on arrest. The plaintiff thereupon changed her mind and decided to abandon the case. She claims that she paid the $100 because defendant said "it was a sure thing," i. e., that she would succeed, and that he would "bring Smith to his knees, but that, after getting the $100, defendant admitted he did not know whether she would be successful or not. The defendant denies that he made any such promises, but, even if he did, a claim of false pretenses can hardly be based thereon, as the alleged words were evidently a mere expression of opinion on the part of defendant, which might, or might not, prove correct. Upon deciding to abandon the case, the plaintiff told defendant she would allow him ten dollars for his services already performed, and demanded back the remaining ninety. The defendant refused to pay her back a cent, and declared that he was ready and willing to go on with the action against Smith, if the plaintiff would allow him to do so. The summons in said action does not appear to have been served on Smith, but it is conceded that defendant had already performed some services in preparing the papers for the proposed order of arrest, as aforesaid, and in consulting with plaintiff, as we have already stated.

The plaintiff brought this action to recover the said sum of $100, so paid to the defendant. At the end of the trial the justice said to defendant. "Suppose you give her back ninety dollars?" The defendant replied: "I would not give her a cent back." Thereupon the justice gave judgment for the plaintiff in the sum of $100. Defendant appeals.

The defendant made no motion to dismiss the complaint, but, as this appeal is from a judgment of the Municipal

Misc.] Supreme Court, Appellate Term, February, 1904.

Court, we will determine the validity of the judgment according to the facts, without regard to such omission on the part of the defendant.

We think the judgment was erroneous. The plaintiff's contract with defendant was that the former was to pay the latter $100, in return for which the latter was to prosecute the action against Smith. The plaintiff has paid the $100, and the defendant has already rendered all the services he could in said action, and stood ready and willing to carry out his part of the agreement to the end, but the plaintiff would not let him do so. The plaintiff should not be allowed to profit by such action on her part to the detriment of the defendant, especially as no sufficient reason for her abandonment of the Smith case appears to have been given.

The judgment is reversed and a new trial granted, with costs to appellant to abide the event.

FREEDMAN, P. J., and GREENBAUM, J., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

SOLOMON SOLOMON, Respondent, v. JOHN FANTOZZI et al., Appellants.

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

Landlord and tenant — Constructive partial eviction — Implied easements of light and air not recognized in this State.

Where an owner of a building having a basement room lighted by, and a water-closet ventilating shaft opening upon, a separate adjoining lot owned by him, leases the building, the demise does not carry to the tenant any implied easements of light or air from or over the adjoining lot and therefore where the owner subsequently builds upon it in such a manner as to cut off light from the room and air from the shaft there is no constructive partial eviction available to the tenant as a defense to an action by the owner for the rent.

Supreme Court, Appellate Term, February, 1904. [Vol. 43.

The English doctrine of ancient lights has never been adopted in the State of New York and no implied easements of light or air are recognized here.

THREE separate appeals by the defendants from three separate judgments of the Municipal Court of the city of New York, borough of Manhattan.

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 instalments.

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 those 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 water closet 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

Misc.] Supreme Court, Appellate Term, February, 1904.

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 defendant's premises. The improvements also necessitated the placing of a board over the opening of the ventilating shaft, thus interfering with the ventilation of the water closet. 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; affd., 167 N. Y. 598, 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, 10 Barb. 537; Doyle v. Lord, 64 N. Y. 432; 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. Wash. Ease. (4th ed.), p. 657.

The cases relied upon by the appellant (Matter of Hall v.