The New York herald., 1872-11-28
COURT or COMMON PLEAS-pAaT 2.
Important Question Affecting the Liza
hility OF Suretics tor Rcnt-Versiict for
Defendant.
Before Judge Larremore.

Before Judge LarremOre.
Abraham Lowcnbein ct al. vs. James Skemmer
hOrn.-This was suit brought against james Skem-
merhorn as the surety Of Lise, Henncy n Co.. for
balance of rent OF the premises Nos. 645 and ca
Broadway, amounting to $2,G6S rs, The defence
set up was that the tenants were deprived of the
use OF the stairway OF No. GAS, to which they
entitled, and that they were thereby obliged to
vacate the premises, as they could not
carry their work, employees and materials, consist
ing Of plaster Of Paris, placklead and other ngre
dients used In stereotypng, down the stairway Of
No. 647, which was stairway that had been
specially lifted up for the reception OF authors,
publishers and ladies, who were in the habit 0l
visiting their establishment TO correct proofs, &C.
Mr. N. B. HOXle, in summing up the evidence for
the defendants, held that the covenant Of the
lease so far as this controversy was concerned,
and for breach OF which Mr.. skemmeihorn was
sued surety, was the covenant to pay $500 every
month during the term OF the lease tnat the stair
ways leading to the buildings were part OF the
premises described, and that part OF these stair
ways had been taken from the tenants the original
amount OF rent stipulated for had ceased
surety under, such crcnmstanccs because his con
tract was entire and unproportionabe, and where
there was change between the original position
OF the debtor and creditor the surety became dis
charged His liability was destroyed by an act OF
the plalntins, which 1t was their duty to have pro-
tected the tenants against-there had been o
breach in the covenant for qxiet possesson-and
the rights OF the painiiIs to recover the rent had
been destroyed by their own act IN evctng the ten
ants from the use OF that stairway to which they
were entitled. They had had one years quiet, uI.
disturbed possession OF that stairway, when 1t was
suddenly taken fIOm them, and 1t could not GER
tainly be said that they had been using for twelve
months a portion OF the building to which they
were not entitled. He held that as there was no
construction in the lease which denied them the
use OF the designated way they had every title to
II as being an appurtcnance to that portion Of the
building which they rented
After the address OF Mr. Morrison for the plaintiffs
counsel consented that the following points should
be submitted to the jury:-First, whether the two
stairways were both appurenant to or part OF the
demise Second, whether there had been any
eviction and, third, the amount which should be
deducted from the amount OF rent claimed. Be-
fore the jury retired Mr.. Morrison stated the
plaintiffs claimed $1,000, being the amount OF rent
with interest made up to date, and the defendant
urged in eXtcnuatiOG that the value Of their busi-
ness since the injunction WAS issued fell or fully
fifty per cent, and held that plaintiffs could claim
no interest. His Honor held that the plaintiffs
would not be entitled to interest in the event OF
apportiOnment.
The jury returned into Court with verdict for
defendant.