Nichols v. Eustis — 146 A.D. 475

Majority

p. 475

Mary A. Nichols, Respondent, v. John E. Eustis and William Peters, Appellants.

Second Department,

October 20, 1911.

Headnote

Evidence — saving objection until appeal — forcible entry on premises — ejectment of ténant — lease — damages.

Where a lease of park lands having buildings thereon owned by the lessee has been received in evidence without objection, it is too late on appeal to raise the point that .there is no.evidence that the park board authorized the execution of the instrument.

Where laborers under the direction of the defendants broke down the door of one. of the buildings, tore out the windows and broke in the side of another building in which plaintiff lived, there was a forcible entry within the meaning of section 2233 of the Code of Civil Procedure for which damages may be recovered in a civil action. (Code Civ. Proc. § 1669.)

Even though the lessee’s term had expired defendants were not justified in forcibly ejecting her from the premises.

Appeal by the defendants, John E. Eustis and another, from a judgment of the Supreme Court in favor of the plain-tiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk?s office on the 27th day of June, 1910, denying the defendants’ motion for anew trial made upon the minutes.

p. 476

Tallmadge W. Foster [ William D. Peck with him on the brief], for the appellants.

Frank E. Carstarphen [ John A. McEveety with him on the brief], for the respondent.

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

p. 477

was for a definite term which had not expired, a contract of such a character “must be construed as made subject to what we may term the governmental or legislative power” of the authorities having control of the subject-matter thereof for the public use, and that in a proper case such agreement may be terminated in the interests of the public. (New York Mail & Newspaper Transportation Co. v. Shea, 30 App. Div. 266 ; Gushee v. City of New York, 42 id. 37; Gredinger v. Higgins, 139 id. 606.) But if the acts of defendants constituted a forcible entry, it is a matter of no consequence that the term of occupation specified in such instrument had been lawfully terminated. Plaintiff was still in occupation of the premises, and defendants, were not justified in forcibly ejecting her therefrom. “The party so using force and acquiring possession may have the superior title-or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own hand and by violence.” (Iron Mountain & Helena Railroad v. Johnson, 119 U. S. 608 .) Moreover, defendants could not terminate an agreement of this character' unless the determination so to do was made in good faith and in furtherance of the public interests. Upon the trial of this action the jury found a general verdict for the plaintiff, and in addition thereto, without objection from any of the parties, found specially upon the following questions of fact stated in writing (Code Civ. Proc. § 1187), namely: (1) Did the defendants in doing the acts set forth in the complaint act- in good faith 2 (2.) Did the defendants in doing such acts act capriciously 2 (3) What is the damage which resulted to the plaintiff from the' destruction and loss of buildings and personal property 2 The trial court further instructed the jury that the acts referred to consisted “ in going upon the premises on the 6th day of April and causing these buildings to be destroyed, torn down.” The jury answered the first question in the negative and the second in the affirmative, and fixed the damages at $4,000. By stipulation the question of the amount of damages is eliminated from the case. The evidence fully sustains the findings of the jury upon the remaining questions. Even if plaintiff’s right

p. 478

of possession had been lawfully terminated defendants’ method of regaining possession was clearly unlawful.

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.

Cases cited

Wood v. Phillips 43 N. Y. 152 N.Y. 1870-12-13 at 157 p. 476
Iron Mountain & Helena Railroad v. Johnson 119 U. S. 608 SCOTUS 1887-01-10 p. 477