Cain v. Flood — 38 N.Y. St. Rep. 196

Majority

p. 196

Sarah Cain, Guardian, Resp’t, v. Rosa Flood, App’lt.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

Summary Proceedings—Forcible entry.

To authorize a recovery of premises under § 8245 of the Code, it is only

p. 197

necessary for the petitioner to show peaceable and actual possession at the time of defendant’s forcible entry. No time is fixed by law during which such actual and peaceable possession must have endured, and it is no defense that petitioner’s own possession originated in force.

Appeal from a final order awarding possession to the petitioner.

Summary proceedings to recover the possession of premises alleged to have been forcibly entered and detained by the defendant.

James O'Neil, for resp’t; Charles Lee Brooke, for app’lt

Pursuant to the provisions of § 465 of the Penal Code it is an indictable offense for any person forcibly to enter upon or detain the lands or other possessions of another, and it cannot justify the accused or palliate his offense to urge in his behalf that another person had previously committed a like offense. Yet this was substantially the sole defense in the trial court and the refusal to allow it constituted the only alleged error urged for reversal of the order appealed from. These proceedings were instituted in the ninth district court under the provisions of §§ 2231-2265 of the Code of Civil Procedure regulating the summary recovery of the possession of lands unlawfully entered upon or detained by another. No jury trial was demanded. The facts were substantially conceded, and where there was conflicting evidence it was within the province of the trial justice to find in favor of the petitioner. For the purposes of this appeal therefore we must assume that he did so find. It appears then that on July 28, 1890, the petitioner, acting by her agent and attorney and his assistants, claiming the right of possession to the entire premises known as No. 166 Bast One Hundred and Ninth street in the city of New York, procured access to certain apartments therein, which were in the possession and occupation of the defendant at the time, but from which she was temporarily absent, and took possession thereof; that such access was effected by mean's of a key made to unlock the door leading into the apartments and which was securely locked at the time; that such access was had without the knowledge and consent of the defendant and without actual, physical resistance or opposition of any person; that after entry and possession, petitioner caused the door leading into the apartments to be unhinged and removed, and remained in peaceable and actual possession of the apartments for about three-quarters of an hour, when the defendant appeared upon the scene, forced her entrance into the apartments, and by means of wordy abuse and threats of serious personal violence to the petitioner’s representatives caused them to retire, while she resumed possession, refastened the door to its hinges and proclaimed her intention to do bodily harm to any person attempting to disturb her possession.

These facts were sufficient to entitle petitioner to the order appealed from. We deem it unnecessary for the purposes of this appeal to discuss the question whether or not the means employed by petitioner to secure access and effect her possession constituted force. We assume that it was. Still the fact remained that sub

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sequent to her entry and immediately prior to the entry by the defendant she had been in peaceable and actual possession for three-quarters of an hour, and this was sufficient to entitle her to maintain her possession as against a person seeking to wrest it from her by force and violence. Code of Civil Procedure, § 2245. No time is prescribed by law for which the peaceable and actual possession must have endured to protect her against the forcible entry of others. Neither can it be material that her possession had its origin in force. All she was obliged to show was peaceable and actual possession at the time of defendant’s forcible entry and the manner in which she secured possession in the beginning is not available to the defendant as a justification of her own unlawful act. If the petitioner’s entry was also by force, both acts of violence were alike prohibited and punishable under the provisions of the Penal Code above referred to, and if defendant felt aggrieved at petitioner’s entry, instead of regaining possession by violence and threats of bodily harm, she should have availed herself of the right to recover possession in the summary proceedings for such cases by law made and provided.

The order appealed from must be affirmed, with costs.

Bookstaver, J., concurs.