
    (74 Misc. Rep. 384.)
    PEOPLE v. BALDWIN et al.
    (Erie County Court.
    November, 1911.)
    Forcible Entry and Detainee (§ 51)—Statutory Provision—Construction.
    Under Penal Law (Consol. Laws 1909, c. 40) § 2034, providing that a person using force or violence in entering upon lands or other possessions of another, except as provided by law, is guilty of a misdemeanor, defendants, who entered premises of complainant without force and took possession of a stove, upon the claim that it had not been paid f.or under the terms of a conditional sale, cannot be convicted of a violation of such section, since it applies only to forcible entry on, and taking or keeping possession of, real property* and not to the mere taking or retaining possession' of a chattel, which constitutes merely a trespass.
    [Ed. Note.—For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 192, 193; Dec. Dig. § 51.*] i
    Appeal from City Court of Buffalo.
    Joseph R. Baldwin and another were convicted of,a forcible entry, and appeal. Reversed.
    Lafay C. Wilkie, for appellants.
    Wesley C. Dudley, Dist. Atty. (Clifford McLaughlin, of counsel), for the People.
    
      
      For other cases see same topic & § number In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   TAYLOR, J.

These defendants, claiming right to enter under color of a conditional contract of sale of personal property, entered the premises of Elizabeth SteWart, in the city of Buffalo, for the purpose of obtaining possession of a stove, claimed by defendants to belong to them for the reason that it had not been paid for under the terms of said contract of sale. There is a dispute as to appellants’ rights under this contract, which is of no materiality, if I am correct in the conclusion which I reach.

The immediate entering of the premises was not forcible, but the complaining witness claims that she was intimidated and threatened and the peace of the household disturbed by defendants in their efforts to obtain possession of said stove. There is no claim of any intention to enter or of any entry upon real property by force for the purpose of obtaining or detaining possession thereof.

The defendants have been tried and convicted in the City Court of Buffalo of violating section 2034 of our Penal Law, which reads as follows:

“A person guilty of using, or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor.”

The statutes of England and of the various states of this Union ,bearing upon the subject of forcible entry and detainer have been the subject of much judicial discussion. As far as the civil statutes are concerned, it appears that the peaceable possession of even a trespasser may not lie entered upon forcibly, even by the owner of the land. However, it must be a case of actual possession, and not mere occupancy. Furthermore, it is not a question of title, right of entry, or right of possession. The object of all the statutes bearing on this, subject is to preserve the public peace and to prevent persons from asserting their rights, real or supposed, to enter upon and take possession, or, under certain circumstances, to retain possession, of real property by force or violence. A mere trespass, not accompanied by force, violence, or intimidation by menaces, gestures, or threats to obtain the possession of real property, is insufficient to make out a forcible entry; and, as to forcible detainer, mere words are insufficient. Personal violence must be shown.

Whatever the facts in the case involved may have been as to threats,, menaces, or physical interferencé with each other by the parties concerned is not material. A study of said section 2034, and of the various decisions of the courts bearing on forcible entry and detainer, has. convinced me that the section applies to forcible entry on, and taking possession or keeping possession of, real property only, and not to trespass involving merely a taking or retaining possession of chattels. It may be that these defendants could be successfully proceeded against under section 43 or section 720 of our Penal Law, or for assault in the third degree, or under some city ordinance; but, as I read the law, they cannot be convicted under said section 2034.

Therefore, whatever the equities may be between these parties, and however reprehensible the conduct of any of them, these defendants have the right not to be convicted of a crime which they have not committed; and therefore the judgment of the court below must be-reversed, and the fines remitted.

Judgment reversed.  