131 N.Y.S. 265 | N.Y. App. Div. | 1911
The instrument executed on December 2, 1901, was in form a lease for a period of five years from the 2d day of December, 1901, of land situated in Pelham Bay Park, in the borough of the Bronx. It granted to plaintiff the use of the park land upon which “stand the premises owned by her.” In view of the evidence, which was not disputed, that at that time there were, buildings upon the park lands which were.her property, the word “ premises,” though somewhat inapt, may be construed as meaning buildings. The subject of the agreement was, therefore, land, and it is not disputed that plaintiff was in the actual possession thereof up to April 6, 1903. In this respect this case is distinguishable froin Becher v. City of New York (102 App. Div. 269). It is true that there is no evidence that the park board authorized the. execution of the instrument. (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, § 616.) But when offered in evidence it Was received without objection. Non constat but if objection had been made to its competency all' the necessary prerequisites to its execution might have been proved. The evidence clearly establishes that on the 6th of April, 1903, the defendant Peters* with a gang of laborers acting under the direction of the defendant Eustis, went upon the premises, broke down the door of one. of the buildings, tore out the windows, tore out the sides of another building in which plaintiff with , her children were then living, tore off the roof, and made it impossible for her to occupy the same. We think that these acts constituted a forcible entry within the, meaning of the statute. (Code Civ. Proc. § 2233; 19 Cyc. 1112.) Although originally proceedings under the statute for forcible entry and detainer were in their nature criminal, the violation of such statute is now sufficient basis for a civil action for damages. (Code Civ. Proc. § 1669; Wood v. Phillips, 43 N. Y. 152, 157.) The defendants contend that although the agreement with plaintiff
The judgment and order denying a motion for a new trial should he affirmed, with costs.
Jenks, P. J., Carr, Woodward and Rich, JJ., concurred,
judgment and order affirmed, with costs.