
    Herman Schrier, Respondent, v. Fannie Shaffer, Appellant.
    Second Department,
    January 10, 1908.
    Beal property — forcible entry and detainer—treble damages — dispossessing trespasser.
    To recover the treble damages authorized by section 1669 of the Code of Civil Procedure in actions for forcible entry or detainer, the entry must be shown to have been riotous or accompanied with personal violence. The fact that . the defendant, the owner of the premises, broke the. lock of a cellar door and removed the plaintiff’s goods without resistance upon his part, does not entitle him to treble damages. ■
    When in such action it is shown that the olaintiff whose goods were removed ' was himself the trespasser, his complaint should be dismissed, for the true owner is not answerable in damages for dispossessing a trespasser divested .of all title.
    
      ■ Appeal by the defendant, Fannie Shaffer, from a judgment of the Municipal Court of the' city of New York,, borough- of Brooklyn, in favor of the plaintiff in the sum of §169.40. -
    
      Isaac Miller, for the appellant.
    
      Paul A. Katske, for the respondent.
   Woodward, J.:

This is an action to. recover" .damages for -an alleged trespass to real property owned by the defendant and occupied by the plaintiff for the storage of paper: . The complaint reads':.- “ Damages by reason of unlawful enti-y on plaintiff’s premises destroying -his property.” The answer was a general denial. The plaintiff proved no right or title to the premises, a cellar,, into which he had- moved a stock of paper oil October fourteenth, claiming to have rented the cellar from the tenant of the. store, above. About a week later he was told by the owner of.the cellar, the kief en dan t, to move his goods out, anil- upon his refused to' do sol until the first of the' following month, the defendant broke -the lock of the- cellar and in the presence of' the plaintiff, who offered no resistance, removed, the goods to the sidewalk, whence after about an hour they "were returned to the cellar by the defendant, upon the unsought advice of the "local police officer. The case was tried without, a jury, and tire justice found that the plaintiff was entitled to treble.damages-under section 1669 of the Code of Civil Procedure." -That -section relates-to .disseisin “in a forcible manner,” but the record -contains, no evidence whatever of personal"'violence or-riotous, entry. The only force used was in the breaking of the lock, and i\y M’Dougall v. Sitcher (1 Johns. 43), where the defendant "broke the lock of. the* premises" in'quo and removed goods left within by the plaintiff, Livingston, J., writing for the court; says (p. 44): “The goods which were left could not prevent the entry’s being peaceable. They were incapable of resistance and,, therefore^ no breach of peace could' ensile!” Willard v. Warren (17 Wend. 257) was an action.under the statute to: recover treble damages for the forcible disseisin from lands, Cowbn, J., proceeds at great length in defining, forcible entry-, Saying in part: “.The result'seems to be that.there must be something of personal violence or a tendency to, or threat of personal violence, unless the-entry or detainer be riotous. In all cases, there must be something beyond a mere trespass upon the property.”

In the case at bar the defendant was not even a trespasser. Indeed the case is remarkable in that the trespasser himself brings the action, for the general rule is that the true owner cannot be made-answerable in damages for dispossessing a trespasser divested of all title. (Hyatt v. Wood, 4 Johns. 157.) The refusal of the justice to dismiss the complaint was error for which the judgment should be reversed, with costs, and the complaint dismissed,- with costs.

Jenks, Hooker and Miller, JJ., concurred ; Hieschberg, P. J., not voting.

Judgment of the Municipal Court reversed, with costs, and complaint dismissed, with costs. 
      
       See 2 R. S. 338, § 4, revised in Code Civ. Proc. § 1669.-[Rep.
     