Skelly v. Cohen — 57 N.Y.S. 247

Majority

p. 247

SKELLY v. COHEN et al.

(Supreme Court, Appellate Term.

March 24, 1899.)

Headnote

Forcible Entry and Detainer—Pleading and Proof.

A petition alleging that, while a petitioner was in actual occupation ant possession of certain premises, defendants unlawfully and forcibly ejected him and his agents therefrom, should be dismissed; the evidence being that he was never on the premises, and at best had but constructive possession through an assignment of a lease from one whose occupation and possession had never been forcibly disturbed, taken away, or withheld.

Appeal from municipal court, borough of Manhattan, Seventh district.

Proceedings by Patrick Skelly against Herman Cohen and others. From an order dismissing the petition, petitioner appeals.

Affirmed

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Johnston & Johnston, for appellant.

Maurice Rapp, for respondents.

The petitioner herein alleged that while in uctuai occupation and possession of the premises No. 324 East. Seventy-First street, in the city of New York, the defendants, on or about June 2, 1898, unlawfully and forcibly ejected him and his agents from the premises, and on that day, and divers days thereafter, held possession of said premises by force. The petitioner himself, however, testified that he had never been upon the premises; and the evidence further introduced on his behalf showed, at best, but constructive possession through an assignment of a lease from one Wenzel Hoffman, whose occupation and possession, so far as appears from the evidence,' had never been forcibly disturbed, taken away, or withheld.

The order of the municipal court dismissing the petition should be affirmed, with costs.

Order affirmed, with costs. All concur.