(dissenting): The demise here is the hotel building known as 453 Fulton street, Jamaica, on the northeasterly corner of that street and avenue, “ together with the appurtenances ” for five years from April 20, 1914, at $1,425 rent for the first three years and $1,725 for the last two years, payable monthly in advance. The building covers the whole lot, is twenty-five feet in width on Fulton street, one hundred feet in depth along Bergen avenue, with four entrances from adjoining street and avenue and also a number of windows therefrom and from the alley adjoining the northerly rear of said building. There is a party wall between the hotel building and 455 Fulton street, immediately adjoining on the east, the party wall extending to the rear of the building let, and there were a door and two windows through said party wall to the rear of 455, opening from the dining room in the rear of the hotel building into a yard, twenty feet in depth, at the rear of 455, which building was eighty feet in depth and twenty-three feet in width; that yard, without an easterly division fence, extended northerly from the rear of 455, twenty feet to the private driveway or alley about thirteen feet wide running easterly from Bergen avenue, one hundred feet northerly from building line on the northerly side of Fulton street, along the rear of the building demised and the adjoining easterly property be*570longing to the landlord, with no fence between said twenty foot yard and said alley. On the outside of the door opening from the dining room into said yard there was a wooden storm shed, about five foot square, used by some of the tenant’s patrons, for their convenience, in going from the rear of the adjoining buildings through the dining room and then through two sitting rooms to the tenant’s saloon in the front of the demised building, on Fulton street. There is no proof or claim by the tenant that the door or windows leading to said yard had been used by him, or for his convenience. Indeed, as to the door the contrary is shown and also that all merchandise for the tenant was delivered and received at the Fulton street front.
In the course of the erection of an one story extension upon said twenty foot yard at the rear of 455 Fulton street, the door and windows were bricked in and closed, the construction thereof being by the lessee of 455, and the landlord authorizing and acquiescing in the same. The landlord here also owned that building which is immediately to the east of the hotel building here in question. The tenant here claims that a right to the continued use by him of the door and windows is fairly to be inferred from the words “ with the appurtenances ’ ’ and, consequently, that the closing of the same constituted a partial eviction and thus suspended the rent.
The language of the lease is clear and precise; there is no expressed grant of a right of way over, or of any use of or easement in or upon, said twenty-foot yard at the rear of 455 Fulton street, and the tenant took only that which he leased, together with everything then belonging to or in use for the building as an incident or appurtenance thereto.
No right to an easement of light and air in favor of *571the demised premises arises by presumption, unless such an easement is reasonably necessary for the beneficial use and enjoyment of the building rented; otherwise it “ never passes by implication.” De Baun v. Moore, 32 App. Div. 397; affd. on opinion below, 167 N. Y. 598; Solomon v. Fantozzi, 43 Misc. Rep. 61.
From the proofs adduced it does not appear that the wooden storm shed was a permanent or an essential part of the brick building leased, or that the use of the door in question was necessary and essential to and for the beneficial use and enjoyment by the tenant of said building for the apparent purposes for which it was demised, since there would appear to have been ample and adequate means of access to and egress from the building on the front and side street and avenue, and there “ can be no implication of a grant of a right of way of necessity, where the grantee has the means of obtaining access to the lands granted, without trespassing on the adjoining lands of his grantor, or the property of a stranger. If they can be approached from a public highway, * * * no right of way of necessity will be implied.” Smyles v. Hastings, 22 N. Y. 217, 222; Fritz v. Tompkins, 168 N. Y. 524, 531.
The word “ appurtenances ” comprehends all that was attached to or used with the premises, as an incident thereto, and necessary and essential to the beneficial use and enjoyment thereof. But that word does not include an interest in the land in the yard at the rear of 455, since land never passes as appurtenant to land. Doyle v. Lord, 64 N. Y. 432, 437; Griffiths v. Morrison, 106 N. Y. 170; Stevens v. Taylor, 111 App. Div. 561.
Even if previous to and at the time of the demise a right of way across the yard or space here in question was shown to have existed, that right would not pass *572by the “ word ‘ appurtenances ’ merely, but there must be particular or general words indicating an intention to grant the way.” Parsons v. Johnson, 68 N. Y. 62, 65. Such an intention does not appear in the lease, nor was it shown on the trial.
In the Doyle Case, supra, it will be noticed that Judge Earl, at page 437, used the words “ convenient or essential to the beneficial use and enjoyment ” of the estate granted, but the settled rule as to implied easements in favor of a grantee is now, in my opinion, dependent upon the easement being reasonably necessary and essential to such beneficial use and enjoyment; that they are a mere convenience is insufficient. (Wells v. Garbutt, 132 N. Y. 430, 438; Paine v. Chandler, 134 N. Y. 385, 388, 389.)
Without a right of way over the adjoining yard the door here in question and the wooden storm shed in front would be of no benefit to the tenant, since its use necessarily depended upon the right to reach it from the adjoining alleyway or open space.
Only such incorporeal easements, rights or privi- - leges as are reasonably necessary to the beneficial use of the estate granted will pass by the word “ appurte-. nances ’ ’ and a ‘ ‘ mere convenience is not sufficient to thus create such a right or easement” as is here claimed. Root v. Wadhams, 107 N. Y. 384, 394; Paine v. Chandler, supra.
For the foregoing reasons and upon the case here presented a partial eviction has not, in my opinion, been shown, and the final order should be reversed and a new trial ordered.
Order affirmed, with costs.