43 How. Pr. 97 | NY | 1869
—The only evidence -given upon the trial of this cause concerning the terms made, while James McBurney occupied the dwelling-house, from which the defendant forcibly expelled the plaintiff, was that which was given by the defendant himself; he stated those terms to be that he was to keep possession of the farm and house; to keep a hired girl there; and board his son and his family there, and pay him $3 50 per year for his services; that he, the defendant, was to furnish every thing for the house; keep possession and board his hands there; that he was to have entire control of the premises, and his son to work for him under his direction. That the furniture, beds, bedding and materials for the table, and all the personal property.on the premises, belonged to him; that he furnished all provisions and every thing for the house, and that his son staid there under the arrangement mentioned by him.
If this evidence was true—and it was for the jury to determine whether it was go or not—then it was clear that the defendant was in- the possession of the house when he removed the plaintiff from it. For, as his son occupied it for him. and not for himself, as his servant and under his control and direction, that rendered the possession his own, and not that of his son (Putnam agt. Wise, 1 Hill, 234. 248; Haywood agt. Miller, 3 Hill, 90; Robertson agt. George, 7 N. H., 306).
And after giving the plaintiff notice that this was the relation existing upon this subject between hihaself and his son, as the plaintiff testified he did, he had a right to require him to leave the house, and upon his refusing to do that unless directed to do it by his son’s wife, whom he had gone there • to visit, the defendant was justified in applying such a degree
The learned judge at the trial, therefore, erred in declining to charge the jury that the defendant was justified in expelling the plaintiff from the house, if they should find the fact that he was at that time in possession, and that he used no more force than the occasion required after he had' first requested him, and the plaintiff had refused, to leave the house. His request was afterwards twice again repeated, and to each repetition of it the court responded as before.
The charge, as given, did not include or answer it. For the jury could have very consistently found that the defendant’s son was rightfully residing with his family in the house, while the actual possession was - that' of the defendant. Such, no doubt, was their relation, if what the defendant testified to was the truth; but the charge of the court totally deprived him of the legal benefit he was entitled to derive, by way of defense, from the possession he had of the dwelling-house. The point was clearly and distinctly raised, as well as fairly presented, by tire evidence and the defendant was entitled to have the judgment of the jury upon it. As. he wras deprived of that right the judgment appealed from should be reversed, but as the defendant has' departed this life since the trial was had, and the cause of action is not one that survived his decease, it should be done without directing a new trial, for no trial of the issue can again lawfully take place, and without costs to either party.
Hunt, Lott, -Woodruff and Grover, JJ., concur.
Mason, J., dissents.
