
    Lodemia A. Smith, App’lt, v. Robert Revels, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 20, 1894.)
    
    Ejectment—When lies.
    Ejectment will lie against a contractor who refuses to permit the owner to enter, in order to inspect it, the house in process of erection.
    Appeal from an order denying a motion for a new trial, made on the minutes of the court.
    
      J. R. Jewell, for app’lt; Henry Donnelly, for resp’t.
   Bradley, J.

The action is ejectment brought to recover possession of a dwelling house and the land upon which it rests in the village of Olean, N. Y. The plaintiff, being the owner of the land, entered into a contract with the defendant, September 1, 1892, whereby he undertook to furnish materials and build thereon ánd complete for her, on or before December 1, 1892, a dwelling house for the sum of $1,470, payable as follows : $300 when the foundation was built; $300 when the frame was erected; $200 when the plaster was on and dry; $200 when the wood work was finished ; and the residue when the building should be finished and delivered to her free from incumbrance. The defendant proceeded with the work, and some payments were made to him. The evidence tended to prove that in March, 1893, the defendant called upon the plaintiff for a payment upon the contract, and stated to her that the house was finished inside; that the plaintiff expressed a desire to go into the building, and see the work and how it was done, before paying him, and, for that purpose, to take some person in with her to examine it; that, while the defendant consented that she could go in with him, he refused to permit her to take any one into the house with her; and that afterwards, before the commencement of this action, the plaintiff caused demand to be made of the defendant for the possession of the building, and of the keys, to enable her to go into it. This was refused. The evidence warranted the conclusion that the plaintiff was wrongfully excluded from the building. The premises were hers, the house was being erected by the defendant for her, under the contract, and no reason appears for denial to her of the right to enter it for the purpose of seeing what progress had been made in the work, and the manner it was performed. The plaintiff did not seek to rescind the contract. She had the right to the possession, consistently with the control which the defendant had of the work of construction. It was but reasonable that the plaintiff should, at her pleasure, with proper assistance, inspect the work as it progressed. This she sought to do, and her right to do so was denied, and shé was excluded by the defendant. The purpose of the action of ejectment is to enforce a right of entry, when it exists in real property, by a person who, having the right of possession, is excluded from it by another; and in such case the remedy may be made available when the property is such that judgment can be executed by the delivery of the possession, and it can be held by the party having such right. Jackson v. Buell, 9 Johns. 298; Rowan v. Kelsey, 18 Barb. 484; 41 N. Y. 594; 4 Abb. Dec. 125. It may be assumed that it was in the power of the plaintiff to rescind the contract, and take such consequences as should follow as for breach of it. Lord v. Thomas, 64 N. Y. 107. But she expressed no desire to do that. She asserted the right to the possession, and sought to exercise it in a manner consistently with the continued performance by the defendant of his contract. The suggestion by the defendant’s counsel that the plaintiff had the possession, and the defendant a mere license, for the purpose for which the contract was made does necessarily aid him, if he in fact excluded the plaintiff from the building. He then assumed a relation not consistent with a mere license. In Child v. Chappell, 9 N. Y. 246, the subject of the action was an easement. The defendant there did not exclude the plaintiff, but exercised a right he had of using the wharf in question for certain purposes. No evidence was introduced on the part of the defense. The facts which the evidence on the part of the plaintiff tended to prove were sufficient to support a recovery by her. The exception to the nonsuit were therefore well taken.

The order appealed from should be reversed, and a new trial granted ; costs to abide the event.

All concur.  