20 Barb. 16 | N.Y. Sup. Ct. | 1854
The defendant went to the plaintiff’s house with process which he was authorized by law to serve. (2 R. S. 240, § 82.) The person upon whom he was to make the service, was in the house. These facts amounted to a legal license, and, having found the door open, and entered peaceably, the defendant was lawfully there. Deriving his authority to be there from the law, and not from the consent of the plaintiffs, he was under no obligation to obey Mrs. Hager, when she ordered him to leave. Hot having conferred upon him his license, she had no power to revoke it. He was as rightfully there after he had been directed to leave, as before. I know of no duty which bound him to desist from the execution of the lawful purpose which had brought him there. If his taste led him to encounter the vituperation and violence of such a woman as he met there, it was his right to do so. To the extent, therefore, that the force used by the defendant was necessary to overcome the unlawful resistance he met in the service of the subpoena, it was lawful. Mrs.. Hager was the wrongdoer, and not the defendant. If he used more force than was necessary to enable him to accomplish his purpose, to that extent he is liable as a wrongdoer.
The jury were led to understand, upon the trial, that after Mrs. Hager had ordered the defendant out, the subpoena furnished him no justification or protection. In effect, they were instructed that by remaining, after having been ordered to leave, the defendant became a trespasser. In this, they were
The jury ought to have been told that, inasmuch as the defendant had entered the house in a peaceable manner, under a license given him by law, he had a right to remain there until he had effected the service of the subpoena; that Mrs. Hager, by resisting the defendant in making such service, was herself guilty of an unlawful act, and that the defendant was justified, notwithstanding such resistance, in using all the force necessary to enable him to serve the subpoena, and that he was only liable for any excess of violence used by him more than was necessary to overcome the resistance with which he met. I am of opinion, therefore, that the order of the special term should be reversed, and that a new trial should be granted, with costs to abide the event.
Wright, Harris and Watson, Justices,]
