
    JOHN NEWMAN, Appellant, v. EDMUND C. MARSHALL, Respondent.
    
      Assault and battery, instigator present—justification, claim of right to possession. when not.—Tenant-at-will, notice to quit.—Submission to jury, right to.
    
    One who is present and instigates and encourages those who actually use physical violence is liable for assault and cattery.
    A tenant-at-will is entitled to at least reasonable notice to quit. A notice to leave forthwith is not sufficient, especially when accompanied with a notice to get his personal property together and remove it.
    Parties committing an assault and battery and expelling from possession by force, one asserting by re-entry his right to possession after his rightful prior possession had been by them wrongfully entered upon, cannot justify their action under a claim of right to possession.
    The plaintiff being in possession of premises, having been allowed by the defendant, under an agreement with him, to go into possession for the purpose of doing business there, and having therein considerable personal property, upon a demand being made by defendant (who claimed the right to immediate possession) to forthwith give up possession and get his personal property together and remove it, asserted his right to remain, and went to the front door for the purpose of giving a message to a boy to take to his lawyer, and then the defendant and those acting with him shut the door and barred him out, whereupon he went to a back door, broke it open and entered, and thereupon the defendant and those with him, or those with him, instigated and encouraged by him, he being present, assaulted the plaintiff and put him out by force; for which assault and battery the action was brought.
    
      Held, that the complaint was improperly dismissed, that as these facts did not incontrovertibly show that the plaintiff had voluntarily abandoned possession to the defendant, and as there was evidence to the effect that defendant pushed plaintiff, and also to the effect that he was present and instigated the assault and battery by others, the plaintiff was entitled to a verdict of the jury as to whether he had abandoned possession before he attempted to re-enter through the back door, and as to whether the defendant was guilty of assault and battery.
    Before Sedgwick, Oh. J. and O’Gorman, J.
    
      Decided June 1, 1885.
    Appeal by plaintiff from judgment for defendant, dismissing complaint, entered upon a direction at trial term.
    The action was for assault and battery. The facts sufficiently appear in the opinion.
    
      William J. Hardy, attorney, and of counsel for appellant, as affecting the questions considered in the opinion argued:
    I. Where several unite in an assault and battery, all are equally responsible for the entire damages ; one cannot excuse himself by showing the insignificance of his participation, as, compared with that of the others ; and the person injured can elect which particular one of the number he will sue to the exclusion of the others ; he may sue any or all (Cooley on Torts, 134 ; 2 Greenl. Ev. § 621; Bishop v. Ely, 9 Johns. 294 ; Hume v. Oldacre, 1 Stark. 351; Bell v. Morrison, 27 Miss. 68).
    II. It was assault and battery to lay hands upon the plaintiff with intent to eject, him from his tavern. He was at least tenant at will, and the defendant, lessee, could not repossess himself of the premises as against such a tenant, either by force or otherwise, until the expiration of at least thirty days’ notice to quit, under the statute (3 R. S. [7 ed.] p. 2201, P. II., C. I., T. IV., §7 ; Jackson ex d. Livingston v. Bryan, 1 Johns. 322 ; Larned v. Hudson, 60 N. Y. 104). But the 1st May, 1883, having passed without the duration of plaintiff’s occupancy of said premises after said date, being specified between the parties, the defendant became a tenant for one year to May 1, 1884 (2 R. S. [7 ed.] p. 2200, § 1; McAdam Landlord & Tenant, 32-36; Tuomey v. Dunn, 42 Super. Ct. 291; Washburn Real Prop. 512 ; Jackson ex dem. Livingston v. Bryan, supra). The entry by defendant with intent to deforce plaintiff, was trespass (Littlejohn v. Attrill, 94 N. Y. 619 ; Cooley on Torts, 316, and cases ; Six Carpenter’s Case, 8 Co. 290 ; S. C., 1 Smith’s L. C. 216 ; 2 Bl. Com. 212, 213). When plaintiff was locked out of his front door he did not lose his possession ; for his absence was temporary, and he left his goods and servants upon the premises, and his entry at the side door was rightful (Cooley on Torts, 322, 324, and cases ; Littlejohn v. Attrill, supra; 1 Phillips Ev. 201; Greenl. Ev. § 108). Whether he had once lost his possession or not, when the plaintiff had again promptly effected actual entrance into his premises, his presence there was lawful and of right, and his use of force to get in could not qualify his legal right to remain there (Hyatt v. Wood, 4 Johns. 150 ; Estes v. Kelsey, 8 Wend. 555 ; Filkins v. People, 69 N. Y. 101, 105 ; 1 Washburn Real Prop. 530, §§ 30, 537, 539 ; Jackson ex dem. Stansbury v. Farmer, 9 Wend. 201 ; Ives v. Ives, 13 Johns. 235 ; Wilde v. Cantillon, 1 Johns. Cas. 123 ; Wood v. Phillips, 43 N. Y. 157). There can be no forcible entry as against a mere trespasser, for where the rightful occupant asserts his rights promptly, the trespasser cannot acquire even naked possession (Cooley on Torts, 322, 324, cases cited, and authorities, supra). And, as a question of civil rights (as distinguished from the rights of the people), at issue in a civil court in a civil action, the plaintiff would have been fully justified in using force to defend his possession and his goods, and even to put the defendant and his party out of the place (Bliss v. Johnson, N. Y. 534 ; Cooley on Torts, 322, 324, cases and authorities, supra). And the plaintiff, when he had entered his side door, being in actual possession of premises to which he had the right of possession, the act of the defendant and his confederates in thrusting him out, was an assault and battery (Woods v. Phillips, 43 N. Y. 157).
    
      George W. Savage, attorney, and John D. Townsend, of counsel for respondent, as bearing on the questions considered in the opinion, argued:
    I. The plaintiff, upon the evidence, was a tenant at will, and, had he required it, would have been entitled to a month’s notice in writing before he could have been deprived of possession (Larned v. Hudson, 60 N. Y. 104; 3 R. S. 2201, § 7, Banks’ 7th ed).
    II. The plaintiff was not forcibly evicted. He left the premises of his own volition, after full knowledge that the defendant had sold them to another party, and had demanded possession.
    HI. Being thus out of possession the plaintiff had no right to use force in attempting to regain possession of the premises (Pollen v. Brewer, 7 C. B. [N. S] 371; Parsons v. Brown, 15 Barb. 590 ; Sampson v. Henry, 11 Pick. 387).
    IV. As matter of fact, the defendant himself neither assaulted the plaintiff nor aided or abetted any one else in doing so.
   Per Curiam.

The learned judge below, on all the testimony, dismissed the complaint. So far as this was done on the ground that there was no evidence that the defendant made either an assault or battery upon the plaintiff, two things are to be said. First, there was some testimony that the defendant pushed the plaintiff. Second, although the greater part of the violence done to the plaintiff, as he testified, was done by others than the defendant, there was testimony enough to take the verdict of the jury as to whether the defendant, being present, did not instigate and encourage those who actually used physical violence upon the plaintiff. If he did, in legal effect he was guilty of assault and battery.

The important question is whether the persons who used the force upon the plaintiff, were justified in that, upon the ground that there was no more force used than was necessary to prevent the plaintiff entering into possession of premises, of which the defendant or his vendee were rightfully in possession, while the plaintiff had no right of possession. The premises referred to were a barroom, which had fixtures belonging to plaintiff, and another room opening into the bar-room. There was there other property belonging to the plaintiff. The defendant was a lessee of the premises. By an agreement it clearly appeared that the defendant had allowed the plaintiff to go into possession of the premises for the purpose of doing business there. The plaintiff was in possession in his own right, and not as servant or agent of the defendant. On a day in February, the defendant, without any former notice to the plaintiff to remove from the premises, entered them in company with several others and told the plaintiff that he must leave at once, he the defendant having sold the place to one of the persons. The plaintiff asserted that the place was his, and he had a right to remain. He in no way yielded or acquiesced in the demand made by the defendant, unless he did so by the following conduct on his part:—For the purpose of giving a message to a boy, to be taken to his lawyer, he went to the front door and stood near it for a moment, when those on the inside shut the door and locked it. These facts do not incontrovertibly show that the plaintiff voluntarily abandoned possession to the defendant. There are some strong indications to the contrary. At least the verdict of the jury have been taken on this point. If the plaintiff did not voluntarily abandon or surrender the possession of the premises, the defendant or his vendee did not go into possession.

On the facts, that in this case show the rights of the opposing parties, it would seem that the plaintiff’s right to possession had not been ended by the notice to leave at once, but could be ended only upon giving a reasonable time within which to remove. If other facts were known, it might be possible to say whether the law had fixed the time of notice. It is only necessary now to say that notice to leave forthwith was not enough, the plaintiff being in by consent of defendant, and not therefore, a trespasser or anything of that nature.

On the notice that was given, as it was accompanied by a notice to the plaintiff to get his property together, he would be rightfully in possession until a time proper for such a transaction should pass. But it' seem clear from any point of view that he had not left the possession.

On the front door being locked, he went to a back door to the rooms, broke it open and entered. Forthwith, the parties inside attacked him, used the violence that has been referred to, and forced him outside of the door, and the vendee of the defendant has remained since then in occupation. As it has been determined that the plaintiff had not gone out of possession and the defendant or his vendee had not entered into it, or that it does not appear so uncontrovertibly, the defendant’s violence, if he were guilty of it, was used to put the plaintiff out of possession by force, and this was illegal, and the force was not used to prevent the plaintiff entering forcibly upon the defendant’s possession.

There were facts that entitled the plaintiff at least to a verdict of the jury as to whether he had left or abandoned possession, before he attempted to re-enter through the back door, and as to whether the defendant was guilty of assault and battery.

Judgment reversed, and a new trial ordered, with costs to abide event.  