
    Annette Butler, Appellant, v. George S. Smith and Philo P. Safford, Respondents.
    Second Department,
    October 4, 1907.
    Landlord and tenant — holding oyer by tenant’s wife — forcible eviction.
    A wife, not living with her husband, who remains on the. premises after the termination of a lease standing in his name does not become a tenant, and a landlord, who removes-her goods from the premises without violence is not liable ■for damages for forcible eviction.
    Appeal by the plaintiff, Annette Butler,'from a judgment of the Supreme Court in favor of the defendants, entered in the office o.f the cleric of the county of Nassau oil the-2d day of March, 19.06, dismissing the complaint by direction of the court at the close of the plaintiff’s case upon- a.trial at the'Nassau Trial Term, and also from an order entered in said clerk’s office on the 23d day of August, 1906, denying the plaintiff’s motion for a new trial.
    
      Henry P. Keith, for the appellant.
    
      Gilbert W. Minor and Philo P. Safford, for the respondent's.
   Woodward, . J.:

The plaintiff brings this action to recover damages on the theory that, being a tenant in peaceable possession of certain premises, she was forcibly evicted from the same by the defendants. The facts developed on the trial showed that the plaintiff’s husband rented the premises from the defendant Safford, as agent of a third party ; that he was in possession of the saíne, under his lease, until the 1st day of May, 1905 ; that some time prior to that-date the said plaintiffs husband had given' notice that he did not desire the premises after that date. Plaintiff was not living with her husband at the time of - the alleged eviction, but was in possession of the premises, because she and-her children had not removed from the same at the expiration-of the husband’s tenancy. There had.been some negotiation looking to the, renting of the premises by the plaintiff, but the- latter had refused or' neglected to comply with the terms fixed by the defendant Safford, and the latter, had returned a certified check for thirty-five dollars tendered in payment of one month’s rent, and had notified the plaintiff that he would not consent to her .tenancy except upon condition that .she furnish a surety for the rent. At the close of plaintiff’s case the court granted a motion to dismiss the complaint, and appeal comes to this court from the.judgment, and from, an order denying a‘motion for a new trial.

It seems clear that the plaintiff never became a tenant; that she was not holding over, as the premises were rented' originally to her husband and he had formally given notice that he did not desire the same after the expiration of his term. The plaintiff was wrongfully in possession of the premise's; the evidence does not disclose the use of any violence in her removal; she appears to have left the premises upon her own motion after her goods had' been removed by the defendants, acting the while upon the advice of counsel, and it is difficult to conceive of a- cause of action as against these defendants under the circumstances. She had no more right in the premises than she would have-had if the possession had been physically surrendered on the 1st day of May, 1905, and she had moved into the same on the second' d.ay of the' month, without permission-on the part of the defendant Safford. Tinder such circumstances the defendant would certainly have had the right to remove her goods and to permit her to walk out of the premises with her children, and the case is not different simply because she wrongfully remained in the premises after her husband, who was providing for her, had surrendered the same.

The judgment and order appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks, Gaynor and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  