92 N.Y.S. 460 | N.Y. App. Div. | 1905
The plaintiff maintained a stand for the sale of refreshments in Pelham Bay Park, under a written agreement between him and the city of New York, whereby the city granted to him “the privilege of maintaining a stand at the bathhouses near Firman Mansion, for sale of refreshments (spirituous liquors excepted), and renting bathing suits, for the term of three years, from the twenty-fifth day of November, 1903.” On April 4, 1904, the commissioner of parks for the borough of the Bronx assumed to revoke the permit issued to the plaintiff, and notified him of the revocation. A similar notice of revocation was again served upon the plaintiff on June 4, 1904. The plaintiff nevertheless continued to maintain his stand in the park until June 16, 1904, when the stand was forcibly removed by the employes •of the park department, under circumstances which would constitute a forcible entry if the statutory provisions relating to forcible entry and detainer are applicable to the case of a person exercising such a privilege as that conferred upon the plaintiff by his agreement with the city.
The provisions relating to forcible entry and detainer which were formerly contained in the Revised Statutes are now found in the Code of Civil Procedure, beginning with section 2233. See Waterbury v. Deckelmann, 50 App. Div. 434, 64 N. Y. Supp. 60. The principal purpose of the enactment of the original statute on this subject was to restrain acts of violence on the part of those seeking to regain possession of land, even though they might rightfully be entitled to possession. See Wood v. Phillips, 43 N. Y. 152, 157. “The main object still is to preserve the public peace, and prevent parties from asserting their rights by force or violence, though by gradual additions the remedy has become, in effect, a private as well as a public one. But the form of proceeding and the rules of law which govern it remain, to a great degree, unchanged.” It is essential to the maintenance of a prosecution for forcible entry and detainer that the entry complained of shall be made “into real property.” Code Civ, Proc. § 2233. I am of opinion that the interference by the agents of the city with the plaintiff’s refreshment stand in Pelham Bay Park did not constitute an entry into real property, within the meaning of the statute. No piece of land was specified in the agreement as set apart for his occupation. He was
The conclusion, however, that the case does not fall within the purview of the Code provisions relating to forcible entry and detainer demands a reversal of the order appealed from.
Final order of the Municipal Court reversed, with costs. All concur.
HOOKFR, J., not voting.