Kelly v. Sheehy

Headnote

Forcible entry and detainer—treble damages—value of period for whichpremises are detained, possibility if premises had not been detained, of longer letting than such period may be considered.

Appeal by defendant from judgment entered upon verdict and from order trebling damages.

Action for damages, for forcible entry (Code Civ. Pro. § 1069). The jury found single damages, which were reduced as excessive by order of the j udge, and by the same' order the reduced amount was trebled.

It appeared that the defendant was guilty of the forcible entry, and that he detained the premises from the plaintiff for the space of about five months. The complaint claimed as damages in part, the value of the use and occupation'for the five months.

The court at General Term said : “ It is a mistake to suppose that the claim was for the use and occupation by the defendant as upon a letting. It was upon the value to the plaintiff of the use and occupation if he had.not been prevented from disposing of it by the defendant. There was nothing incorrect in the court charging that the jury in estimating the value referred to might consider what it would be for thc| five months, if the plaintiff could rent it for one year, including the five months. The power of the plaintiff to use, the occupation for five months in such a way, affected the actual value, to the plaintiff.

“ The appelMnt’s counsel argue, that the court had no power to treble the damages, because the complaint contained a claim for damages that could not be recovered in an action for forcible entry. It is true that the complaint did make such a claim, but there was no recovery upon it. and the present case, being a part of the record, this ap-; pears upon the .record.”