| N.Y. Sup. Ct. | May 15, 1832
By the Court,
The counsel on both sides seem to have overlooked the provisionsof the Revised Statutes in relation to forcible entries and detainers, which have essentially changed the law applicable to that subject from what it has heretofore been understood to be. If this case was to be de=
By the Revised Statutes, vol. 2, p. 508, § 3, the complaint to be made to the judge is to be accompanied with an affidavit of the forcible entry and detainer, and that the complainant has “ an estate of freehold or for term of years in the premises then subsisting, or some other right to the possession thereof, stating the sameand the judge is thereupon to issue a precept, &c. By the 11th section of this act, it is provided that on the trial of the traverse, the complaint shall only be required to shew, in addition to the forcible entry or detainer complained of “ that he was peaceably in the actual possession of the premises at the time of a forcible entry, or was in the constructive possession of the premises at the time of a forcible holding out.” The only defence allowed to the defendant on the traverse is the denial of the forcible entry or forcible holding out, or shewing that he or his ancestors, or those whose estate he has, have been in the quiet posses-session of the premises three whole years together next before the inquisition found, and that his interest is not determined. § 6 and 11.
These new provisions very properly bring back the statute of forcible entry and detainer, among the most valuable of our remedial statutes, to the original intent and purpose for which the numerous English acts of which our old statute was substantially a copy were passed, to wit, to prevent individuals from doing themselves right by force, and to protect persons in the peaceable occupation of lands from a forcible dispossession without the authority of law. 4 Black. Com. 148. 1 Hawk. 274. The construction of the English statutes by their courts, and which had been followed here, had narrowed down the remedy under them to cases where the relator was seized of a freehold, or was possessed of a term for years, and the consequence was in every other instance of a forcible entry or detainer, so far as this remedy was concerned, the wrong doer, though he entered by force and without right,
It is objected by the defendant, that as the indictment alleges a possession in.fee simple in the relator, the complainant was bound to shew such an estate on the trial. Under the revised statutes, as has already appeared, the nature of the estate has become immaterial; possession is sufficient, and I apprehend the allegation of the estate, in addition to the possession, may be rejected as surplusage. But if it was necessary to establish the fact, as alleged in the indictment, the proof of possession was evidence of it, 11 Johns. R. 510, and the defendant is not at liberty to rebut the inference drawn from such evidence, by shewing the kind of estate ■which the complainant has in the premises. 2 R. S. 508, 9, § 6 and 11.
The proceedings before the judge to remove the relator under the landlord’s act were coram non judice and void. Evertson v. Sutton, 5 Wendell, 281.
The forcible entry and detainer was expressly admitted by the defendant on the trial, which excused the complainant from introducing evidence on that part of the case. The defendant cannot now take this objection.
Motion for new trial denied.