
    Bernhard Liebstadter, Resp’t, v. Nathan Federgreen, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894.)
    
    1. Assault—Justification
    Mere possession of premises will not justify force to prevent the lawful occupant from entering therein, or to eject him therefrom.
    
      2. Same—Menace.
    The menace of violence, with a dangerous weapon within striking distance, is an assault, though the party threatened is not actually struck.
    Appeal from a judgment in favor of plaintiff.
    
      George H. Carpenter, for app’lt; T. F. Bush, for resp’t.
   Herrick, J.

—When the plaintiff hired the store of the defendant, he took that store as it had been theretofore used and occupied by the defendant himself. That gave him the right to the use of the cellar. The defendant, by surreptitiously and wrongfully barring plaintiff’s access to the cellar, did not thereby acquire a lawful possession thereof, within the meaning of Bristor v. Burr, 120 N. Y. 431; 31 St. Rep. 566, which would entitle him to resist with force and violence the efforts of the plaintiff to enter thereupon. The mere actual physical possession of premises by a person is not alone sufficient to justify him in using force and violence to either prevent the entry of the lawful occupant thereon, or, having entered, to eject him therefrom. The menace of violence with a dangerous weapon by a person within striking distance of the party menaced is an assault, even although the person menaced is not actually struck, and damages may be recovered for such assault. The'amount recovered in this case, while it seems large, yet is not so large that we can say it is evidence of passion, corruption, or prejudice; and the finding of the jury should not, therefore, be disturbed.

The judgment should be affirmed, with costs.

All concur.  