202 N.Y. 201 | NY | 1911
The action was brought to recover the treble damages allowed by section 1669 of the Code of Civil Procedure in cases of the forcible entry upon, or detainer of, real property. Upon the trial, the case was submitted to the jury upon the evidence and the plaintiff obtained a verdict; the amount of which was trebled by the judgment pursuant to the statute. There was an affirmance at the Appellate Division, by a divided court, and the defendant now appeals to this court.
I think that the case should not have been submitted to the jury and that the motion for a nonsuit, made upon the plaintiff’s case and renewed upon the whole case, was erroneously denied. The question, which the exception to the denial of the motion raises, is whether the plaintiff had made out a case under a complaint, which was based, expressly, upon the statute. The action is at law and the plaintiff’s right to any recovery must depend upon proof of facts, which will bring the case within statutory provisions, that are penal in their nature. Section 1669 provides that “if a person is disseized, ejected, or put out of real property, in a forcible manner; or, after he has been put out, is held and kept out, by force, or by putting him in fear of personal violence, he is entitled to recover treble damages, in an action therefor against the wrong-doer.” There was. no proof of a forcible entry upon the premises and the trial court so charged; but it was left to the jury to say if there had been a forcible detainer. The evidence shows that the piece of land, in question, formerly, was part of a tract, which one Clark conveyed to the defendant in June, 1888, and that Clark had a good title to the land. Some years prior to that conveyance, a man named Cholet had a small hut, or shanty, upon the premises, in which he sold refreshments. The property so occupied was a small parcel of land in an
This question has been passed upon, quite recently, and quite fully, by this court in Fults v. Munro, (202 N. Y. 34), an action of the same nature as the present .one. In that case, Judge Vann, speaking for the court, defined what force was necessary to be shown to constitute a forcible entry and the definition is applicable to a case of forcible detainer. He said: “The force used must be unusual and tend to bring about a breach of the peace, such as an entry with a strong hand, or a multitude of people, or in a riotous manner, or with personal violence, or with threat and menace to life or limb, or under circumstances which would naturally inspire fear and lead one to apprehend danger of personal injury if he stood up in defense of his possession.” (p. 42.) In that case as in this, the entry was shown to have been peaceable and the question was, as here, whether the plaintiff was kept out by force. It was held that “although the entry was peaceable, still if the plaintiff was kept out through fear of personal violence, she was entitled to recover treble damages for a forcible detainer,” (p. 43), and then the opinion proceeded to consider whether the acts of the defendant were such as would, under the rule in People ex rel. Kline v. Rickert, (supra), amount to a forcible detainer. The facts in that case were that an officer marched with a loaded gun in front of the plaintiff, as she sat by her effects on the roadside, and demeaned himself in such ways as naturally to inspire fear of personal injuries, if she should attempt to regain possession of her land. The opinion in Fulls v. Munro carefully reviews the statutes and the cases, from an early date, and is in point as an authority.
• All that he had to apprehend was from the consequences of remaining in a building in course of demolition. If the defendant had been guilty of a mere trespass, the law afforded the plaintiff an adequate remedy for the injury by an ordinary action.
The complaint should have been dismissed and I advise a reversal of the judgment and that a new trial be ordered; with costs to abide the event.
Cullen, Oh. J., Haight, Vann, Werner, Hiscocic and Collin, JJ., concur.
Judgment reversed, etc.