#### Nathan Rhein, Respondent, *v.*John D. Miller et al., Appellants.

Appeal from a judgment entered upon a verdict in favor of the "plaintiff, and from an order denying a motion for a new trial.

Warren, Boothby & Warren (Lyman E." Warren, of counsel), for appellants.

Oppenheim & Severance (Wales E. Severance, of counsel), for respondent.

O’Dwyer, J.

On September 23, 1896, the respondent was the occupant of the whole of the premises known as No. 2283 Eighth avenue, in the city of New York, and on that day by an indenture in writing leased to the Mount Morris Electric Light Company the entire basement and a space in the rear, and on the south side of the store floor, about ten or twelve feet wide and twelve or fourteen feet long. There was an entrance to the basement from the street. The lease provided as follows: “ Said *817premises to be used for electric light purposes. It is hereby expressly agreed and understood that said party of the second part is to have the privilege of making all alterations it deems necessary at its own expense, and also to place in such boilers and machinery as it may think necessary.” Subsequently and on or about October 14, 1896, the defendants entered into a contract with the Mount Morris Electric Light Company to install a plant in the demised premises.

On the trial the plaintiff testified that some time in October, 1896, after the defendants took the contract from the electric light company, and desiring to use the plaintiff’s front and rear entrance on the ground store floor, and his elevator, that the defendant Ludeman agreed to pay him five dollars a day for the time they had such use. The defendants used the entrances and elevator for a period of seventy-nine days, and it was for the amount due for that use for the said period at five dollars a day that the action is brought.

The defendant Ludeman, after denying that he made the agreement testified to by the plaintiff, and that during the progress of the work he promised to pay the plaintiff, stated the only conversation he had with plaintiff was on the sidewalk in front of the premises, and thus described what took place on that occasion. “ He said he wanted to do everything he could for the Mount Morris Company, so they could get their plant installed quickly and conveniently, and for himself as soon as possible, and I said, *‘*H that is so we would like the use of elevator.’ «He said that would be all right. I said, *‘*If that is so, Mr. Rhein, for any slight inconvenience we put you to in this thing we will pay you five dollars.’ He said that would be satisfactory. And from that on until the work was finished, I don’t remember of a word being said to him about that elevator.”

The plaintiff was corroborated by the witness, Lewis Rhein, and the defendant by the witness, Langley. Under the lease the defendants who were contractors had no right to the use of plaintiff’s premises without compensation therefor. It is true the lease provided that the Electric Light Company had the privilege of making all alterations necessary for their purposes, but this permission related to the use of the demised premises, and not to a use of the plaintiff’s premises. There was no provision in the lease for the use of plaintiff’s entrances to his store, and of his elevator, and the court properly refused to charge the jury that under the lease the defendants had a right to enter upon the premises to *818install the plant and to nse so much of the premises as were necessary therefor.

The exceptions to the rulings upon the admission and exclu-' sion of evidence have been examined, but do not present reversible error. Upon the conflict of evidence the learned trial judge in a charge to which no exception was taken, and which correctly defined the issue, submitted the case to the jury, and with their determination we see no reason to interfere.

Judgment and order appealed from affirmed, with costs.

McCarthy, J., concurs.

Judgment and order affirmed, with costs.