Opinion
June 5, 1926.
Appeal from the Municipal Court, Richmond, First District.
Elias Bernstein, for the appellant.
Carl D. Isaacs, for the respondent.
Present, CROPSEY, MacCRATE and LEWIS, JJ.
Final order unanimously reversed upon the law, with thirty dollars costs to appellant, and final order directed in favor of the landlord.
The lease was of the entire upper floor. It made no mention of any appurtenances. This would be immaterial if the hallway and stairs in question were the only means of access to it. In that case the right to use them would be implied as a way of necessity. Here, however, another means of access to the leased premises was provided. This, by the terms of the lease, was to be through a doorway to be cut by the tenant in the wall connecting the demised premises with his premises adjoining. This indicated that the hallway and stairs were not intended to be included in the demise. ( Agate v. Lowenbein, 4 Daly, 62; Georke v. Wadsworth, 73 N.J. Eq. 448. See, also, McCullough v. Broad Exchange Co., 101 A.D. 566; affd., 184 N.Y. 592.)
The trial court evidently was of the opinion that the hallway and stairs were no part of the demise, but held that the tenant had the right to use them as an appurtenance to the leased floor. Under the conditions referred to, this seems to have been an unwarranted holding; but even if it were correct it would not justify the decision made below. One who has only an easement or right of way over property does not have the right to the possession of that property, but merely the right to use it. The right of possession remains in the owner. ( Perrine v. Bergen, 14 N.J.L. 355; Country Homes Land Co. v. DeGray, 71 N.J. Eq. 283, 289; O'Beirne v. Gildersleeve, 116 A.D. 902, 904; Grafton v. Moir, 30 N.Y. St. Repr. 314; McCullough v. Broad Exchange Co., 101 A.D. 566; affd., 184 N.Y. 592.)
The tenant, therefore, had no right to lease the hallway and stairs to the defendant. Not having the right to the possession thereof, the tenant of course could not give the right of possession to the defendant. The only person who had the right to possession was the petitioner herein; and as the defendant is there without her permission he is a squatter and should be removed. (Civ. Prac. Act, § 1411, subd. 4.) The cases cited by the court below are in accord with the above statement. They held that a squatter proceeding did not lie because the party sought to be removed was occupying the premises with the permission of the person entitled to their possession. Here the defendant is occupying the hallway and stairs without the permission of the petitioner, the only person who has the right to their possession.