
    RECORDER’S COURT—CITY OF COHOES,
    March, 1913.
    THE PEOPLE v. JOHN SALAPATAK.
    Assault.
    One who claiming to be the owner of personal property, seeks to possess himself of it, while in the custody of a third person, with a strong hand and a multitude of people, held guilty of assault, where he injures the person in possession thereof.
    
      Orville R. Ely, for the People.
    
      J. Stanley Carter, for the Defendant.
    
      McElwam, Recorder.
   The charge against the defendant is assault in the third degree. It was charged to have been committed in complainant’s house. Defendant had boarded with her up to March 20, 1913, when he left, claiming he paid all he owed the complainant for board. The next day, Friday, he returned to get his belongings, went to the room he had occupied and was proceeding to take down the bed therein, that had been occupied by him, when complainant told him not to take it and she was pushed or thrown to the floor and she claims otherwise assaulted. Both parties claim to own the bed. The testimony as to this ownership is conflicting. It looks to me as if the complainant were the owner. That being so, any force used by defendant in attempt to take it, was unlawful.

For the sake of the argument, assuming the contrary, that defendant owned the bed, I do not think he had the right to use the degree of force that he did use to retake it. The facts proved seem to be a sufficient warrant for complainant in making a bona fide claim of ownership of the said bed. The right of recaption, it has been held, must not be exercised with a strong hand nor with a multitude of people. If complainant had claimed a lien for board on defendant’s trunk, and refused to let him have it, he would not have been justified in retaking it by force. The civil courts afford a peaceful avenue for adjustment of these disputed claims. Because complainant sat down upon or stood upon the bed she was knocked down and kicked. Her appearance showed severe and rough handling. Even in the latter aspect of the case, I think the force used was severe, excessive, if not wholly unnecessary. But as first above indicated, I am of the opinion that the complainant was the owner of the bed, therefore, the force used by defendant was unlawful and defendant guilty of the crime charged.  