Mills v. Munger — 50 N.Y. St. Rep. 106

Majority

p. 106

Margaret Mills, Ex’rx, Resp’t, v. M. Dwight Munger et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Trespass—Forcible ejection.

While an owner of premises has a right to obtain, if he can, peaceable possession thereof, and would not be liable in an action of trespass for so doing, he has no right to forcibly eject the wife of the former owner, or her furniture therefrom, and is liable to her for so doing for such damages as she sustained.

Appeal from a judgment entered in Ontario county clerk’s office and from an order denying a motion for a new trial made upon the minutes of the court.

Spencer Gooding, for resp’t;

John Gillette, for app’Its.

This action was brought to recover damages sustained by the plaintiff’s testator for injuries to her person by being forcibly ejected from a dwelling house and farm upon which the testator was at the time residing, and also for injuries to her household furniture by its removal from her dwelling house, and its exposure to the elements. She also sought to recover the value of the crops growing upon the farm, which she claimed were converted by the defendants. After recovery of the verdict, Mrs. Martin died, and the plaintiff was substituted as plaintiff. Mrs. Martin was residing with her husband, Ira E. Martin, upon the farm. The appellant, Munger, was the owner of a judgment against Mr. Martin, and he instituted proceedings supplementary to execution upon the judgment, and procured the appointment of

p. 107

a receiver, and obtained an order from the county judge of Ontario county in such proceedings, directing the said Ira E. Martin to deliver possession of the farm to said receiver. Martin had theretofore conveyed his title and all interest in the farm. At the time of the removal of Mrs. Martin, the title of the farm was held by the defendant, Munger. The defendant, Wheeler, as sheriff of the county, by virtue of the said order, forcibly removed Mrs. Martin and a quantity of her furniture from the premises. The defendant Munger assisted in such removal.

The order under which the defendants assumed to act in removing Mrs. Martin and her furniture was held by this court to be void in the action of the First National Bank v. Martin, 49 Hun, 571 ; 18 St. Rep., 414 .

The jury found a verdict for the plaintiff against-both defendants for $835, and, under the instruction of the court, itemized their verdict. They found that the damage to plaintiff’s personal effects, by the removal, was $218.40, and that the injuries to plaintiff’s person were $125.

They further found that the value of the interest of plaintiff in the crops was $491.60. By order of the trial court, and by the stipulation of the plaintiff’s counsel, the item of $491.60, the value of the crops, was deducted from the verdict, and judgment was entered for damages, $343.40, being for the amount of the first two items. While Munger had the right, as owner of the premises, to obtain, if he could, peaceable possession thereof, and would not be liable in an action of trespass for so doing, he had no right to forcibly eject the plaintiff or her furniture therefrom,' and the defendants were liable for so doing for such damages as the testator sustained. The plaintiff’s testimony tended to show that she was forcibly ejected from the house, that she was, at the time, in feeble health, that she was exposed to the elements, and caught cold, and was, in consequence, made sick. The testimony on the part of the plaintiff as to the damages to her household furniture -was mainly given by herself. She testified that the furniture was taken out of the house and roughly thrown upon the ground ; that much of it was broken by the removal, that it was allowed to remain outdoors through the night, that it rained during the night, and that her bedding and furniture were wet and injured. She was permitted, without objection, to give her estimate of the extent of the damage to the furniture. Her testimony tended to show that the injuries to the furniture exceeded the amount the jury found as damages. Her testimony was corroborated by other witnesses. A large number of witnesses called by the defendants controverted the plaintiff’s evidence as to her being forcibly ejected from the house and as to the furniture sustaining injuries. The evidence presented questions of fact for the decision of the jury, and their verdict should not be disturbed on the ground that the damages were excessive.

It appears from the itemized verdict that no exemplary damages were allowed by the jury. The direction of the court to the jury to itemize their verdict was proper, even if objected to, and as no objection was made, it is too late now to raise the question.

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The weight of the evidence tends to 'show that Mrs. Martin gave an exaggerated estimate of the damages to her furniture. The jury so concluded, for the verdict was not for as large an amount of damages as her testimony tended to show she had sustained.

We find no reason justifying a reversal of the judgment and order appealed from.

Judgment and order appealed from affirmed.

Dwight, P. J., and Macomber, J., concur.