Both parties are tenants in the Reynolds Building, situated on the west side of John street in the city of Utica, and derive their leases from the same source. The lease executed to the plaintiff was prior in point of time to that of the defendant. It was made October 25, 1878, and the descriptive clause therein read, viz.: “ The stores known as Nos. 25 and 27 John street in the city of Utica, including basement and the second, third and fourth stories above said basement, with appurtenances.” Confessedly, the stairway in cpiestion is located and in store No. 27 and next south of the main wall dividing stores Nos. 27 and 29.
The general words of the lease to the plaintiff presumably cover all of the store known as No. 27, all of the first floor of No. 27, all of the second floor of No. 27, and all of the third floor of No. 27, and in terms no reservation to the proprietors of the store is contained in the lease. (Hay v. Cumberland, 25 Barb., 595.) The proprietors of the stores therefore in terms leased unto the plaintiff all the space between the division or partition wall erected between store No. 27 and store No. 29.
The use made by the defendant of the stairway situated in No. 27 cannot aid the defendant in asserting a construction of the lease of October 25, 1878, to the plaintiff, as the right to use and have *437and enjoy all of No. 27 was given to the plaintiff, and, therefore, when the defendant became a tenant of one floor of No. 27 he took as an incident and appurtenant to such use the privileges of the stairway. But such privileges cannot be for that reason attached to the right of defendant to use No. 29 under a lease taken from the proprietors of the buildings after the lease made by them to the plaintiff.
The proprietors had carved out of their property all of Nos. 25 and 27, and after that they could give to the defendant no greater or further rights or privileges than remained to them. The original construction of store twenty-nine was such that access could be obtained from the ground to the upper floors without entering upon No. 27. The temporary disuse of such means of access, and the temporary use of No. 27, cannot aid the defendant in asserting a permanent right to use the stairway of No. 27, after the proprietors had leased the same to the plaintiff. The learned judge who granted the injunction concedes, in his opinion, that the lease of twenty-seven is broad enough to carry to the tenant the right to use the stairway situated in No. 27. "Why is this so i Is it not because the stairway was covered by the general description words found in the lease. If that be so, we see nothing in the words used which restricts the use to one in common with the proprietors or their tenants of Nos. 29 and 31. The general words carried to the plaintiff exclusive rights, and in order to make his rights subject to a common use, apt and limiting words should have been used.
We are referred by the learned counsel for the respondent to Lampmam v. Milks (21 N. Y., 505) for the general rule in respect 'to easements which are continuous. It is quite clear that the easement sought to be established in this case would be a discontinuous one; and as it was not necessary to the enjoyment of the property, the rule laid down in that case has no application here. (Roberts v. Roberts, 7 Lans., 57.) The construction contended for by the respondent must fail, as the stairway in question was not necessary to the enjoyment of store twenty-nine, and did not attach as an incident and appurtenant of store twenty-nine. (McDonald v. Lindan, 3 Rawle, 492; McAdam on Landlord and Tenant, 161; Simmons v. Cloonan, 47 N. Y., 14; Huttemeier v. Albro, 18 id., 48; Havens v. Klein, 51 How., 85.)
*438The practical incidents belonging to property of the block at tbe time the appellant’s lease was executed, indicate that the stores which the respondent occupies conld be enjoyed independent of the property leased to the appellant. The lease to the appellant cannot, therefore, be considered as reserving to the proprietors an easement in the premises demised to the appellant. (18 N. Y., 51, and 4 Kent’s Com., 467.)
It is here claimed that the appellant released his claim to an exclusive right to the stairway for a consideration of thirty-five dollars. This claimed release is fully denied by the appellant; and the opinion given at the time the injunction was ordered does not, in terms, refer' to that question of fact between the parties. Perhaps it might be implied that the judge found for the appellant upon that issue of fact.
However that may be, we do not think we are called upon to pass upon that question here. It will more appropriately be determined when the cause shall be tried. Suffice it to say that the respondent’s claim in that regard is fully denied by the appellant, and we ought not to uphold the injunction upon the ground put forth by the respondent in reliance upon the fact thus asserted by him and controverted by the appellant. We prefer to put our decision upon the first ground discussed, and leave the question of release or not open for the trial court. We should reverse the order so far as it is brought up by this appeal.
So much of the order as is appealed from reversed, with ten dollars costs and disbursements.
Taloott, P. J., and Rumsey, J., concurred.So much of the order in each case as is appealed from reversed, with ten dollars costs and disbursements in one case only.