
    ALBERT A. LABRO, Respondent, v. ANNIE CAMPBELL, Appellant.
    
      Forcible entry and detainer in case of lessor and lessee; facts insufficient to maintain action for.—Action under § 2233, Code Civil Procedure— Treble damages under § 1669, what recoverable.
    
    The lessee of demised premises cannot maintain an action for forcible entry and detainer against the lessee, by reason of his wife’s being compelled by force used by the lessor, or his agents, to leave the demised premises.
    Where attention to his comfort and the health of his wife and child are the sole moving causes for the removal by a lessee from demised premises, an action for forcible entry and detainer will not lie against the lessor for acts done by him or his agents rendering such attention necessary or proper, although such acts may have constituted a trespass.
    In an action for treble damages under § 1669, Code of Civil Procedure, • there can only be a recovery for damages happening at and after the time of disseisin and whatever is recovered must be the consequences of the force used to evict.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Appeal by defendant from judgment entered upon a verdict of a jury, and from order denying motion for a new trial. The facts sufficiently appear in the opinion.
    
      P. B. Hathaway, attorney, and Charles Donohue of counsel for appellant, on the questions considered in the opinion, argued:—
    I. The exception as to the condition of the Aveather was well taken. Its condition from April 2 to 19 had no relevancy to the questions at issue. The action was brought for a forcible eviction and disseisin occasioned by the alleged acts of the plumbers inside the premises of plaintiff. It made no difference, nor could it have increased plaintiff’s discomfort or affected his right to damages what the state of the weather Avas at that period. There is nothing in the evidence to shoAV that plaintiff was injured by any change of. the atmosphere.
    II. The exception taken as to repairs to carpets, etc., and moving expenses was well taken. The evidence in the case clearly showed that the furniture and carpets, if injured at all, were so injured by the dust and dirt occasioned by the improvements being made in the upper part of the building. And that such repairs Avere made in the month of March, and before April 2, 1887, and therefore could not form any element in the plaintiff’s claim for damages in this action. The damages sought were for forcible eviction, and proof of breach of covenants under the lease was not admissible. The defendant, if charged at all, could only be charged with such damages as necessarily greAv out of and were directly caused by her unlawful acts.
    III. The exception to the denial of the motion to dismiss the complaint Avas well taken. The statute under which this action was brought is section 1669 of the Code of Civil Procedure. On this the plaintiff must recover, if at all. The statute is highly penal, and must be strictly construed. Van Valkenburgh v. Torrey, 7 Cow. 282; Seward v. Beach, 29 Barb. 239. The thing punished by the section is the doing of certain things forbidden by § 2253 of Code of Civil Procedure. “ An entry shall not be made into real property, but in a case where entry is given by law, and in such case only in a peaceable manner, not with strong hand, nor with multitude of people.” .... These sections are but the reproduction of the Revised Statutes, and that but the re-enactment of a long series of laws preventing the landlord from re-taking property claimed by him without resort to law, and forbidding his forcible ousting of the tenant. Under this section the court was asked to hold on the evidence that the defendants forcibly evicted, disseised, and put out this plaintiff from the premises in question. No claim is made for injury to plaintiff’s holding or use of premises or for damages for breach of covenant of quiet enjoyment, but simply and solely under this statute for forcible eviction, ejectment and disseisin. There is not in the whole of the evidence the merest shadow or claim of seisin, possession or entry by the defendant. Trespass is not enough to sustain the action. People v. Smith, 24 Barb. 16-19. It must be by seisin of possession. People v. Nelson, 13 Johns. 340; People v Reid, 11 Wend. 157; People v. King, Col. & Cai. 364 ; People v. Shaw, Caine 125; People v. Leonard, 11 Johns. 504. The evidence clearly and indisputably shows that the plumbers went into the premises for the purpose of making needed repairs for the betterment of plaintiff’s holding. That only on one or two occasions was there any claim of forcible entry on the part of the plumbers. That in the interval between the first and second occasion, the plumbers were continually in said premises making such repairs.
    
      Joseph N. Goldbaeker, attorney and of counsel for respondent, on the questions considered in the opinion, argued:—
    1. The damages were not excessive, and are sustained by the evidence. If anything the damages are inadequate. The weather was cold, freezing during part of the time; plaintiff was compelled to send his child, which became sick, away, from 14th April until the 18 th April, when they moved. They were a week without gas, and, in short, “ had no home.” It would not, in view of all this, seem that the verdict should be disturbed as excessive. Yates v. Cent. R. R. 67 N. Y. 100.
    II. The acts testified to on the trial read more tamely than they were enacted. They constitute force—and the defendant’s objection on this point only raises the question of the degree of force. Where is it held that the force must be such as to result in bruises and blood, or destruction of property ? If this court holds so, will it not thereby sanction any violence up to aggravated breach of the peace ? On the contrary, it has been held that even threats of violence constitute force. People v. Rickets, 8 Cow. 226; Willard v. Warren, 17 Wend. 257. If the landlord wanted her house for the purpose of making alterations before the expiration of the term—she could enter only by process of law. People v. Police Dept., 41 Super. Ct. 323. The case of the People v. Police Dept., goes further than is necessary to support the judgment in the case at bar. In that case there was not a single act of violence—only the unresisted stationing of men in the relator’s rooms— and the act was held to apply; and in Kelley v. Sheehy, 49 Super. Ct. R. 518, the violence consisted only of pushing by the plaintiff and placing a fence; in our case there were pushes and other acts followed by placing gas pipes—tearing floors—moving articles, etc,, yet a verdict for $105 was sustained. Kelley v. Sheehy, 49 Super. Ct. 518.
    III. As no forcible entry took place prior to 2d April, 1887, the occurrences before that date need not be discussed. The judge’s ruling was so broad that the defendant cannot have been in any way harmed by evidence of things prior to 2d April.
    IV. The objection based upon the amount of damages is no .ground for a new trial. First, because the damages in themselves are not excessive; second, because error in respect to evidence of damages was cured by the judge’s ruling above referred to; third,, because such error has been held by the court of appeals not to be ground for new trial. Yates v. Cent. R. R., 67 N. Y. 100.
    V. Plaintiff is entitled to treble damages when the trespass is a disseisin. This is the statute referred to in the plaintiff’s complaint. Code Civ. Pro., § 1669; Keely v. Sheehy, 49 Super. Ct. 518; Robinson v. Kinne, 70 N. Y. 155; Starkweather v. Quigley, 7 Hun 28.
    VI. The jury having found single damages, it is imperatively the duty of the court to treble them. Code Civ. Pro., §§ 1184, and 1020.
   By the Court.—Sedgwick, Ch. J.

The action was for a violation of § 2233 of the Code of Procedure: “ An entry shall not be made into real property, but in a case where the entry is given by law, and in such a case, only in a peaceable manner, not with strong hand or a multitude of people.” Or the action would he at common law for forcible entry and detainer.

The complaint demanded treble damages under section 1669, which provides if a person is disseised, ejected, or put out of real'property in a forcible manner .....he is entitled to recover treble damages, in an action therefor against the wrong doer.

The plaintiff at the time of the occurrence complained of was the lessee of the defendant, of the premises in question. Workmen of the defendant, went upon the premises and against the objection of the plaintiff insisted upon going in, did go in and continued there, going in every day for about a month, working there and leaving when the work was done. We will assume but not decide that the defendant was responsible for all that the workmen did and that the workmen used force of the kind that is forbidden by the law against forcible entry. Still it appears in contro vertibly by plaintiff’s own testimony that such force was not used against him, or that the force was not the occasion or cause of his leaving the premises.

The case was tried below, as if the wife of the plaintiff was the plaintiff or had the right to prosecute such an action. If she left the premises, by reason of the force, she was not the possessor of the premises. The plaintiff her husband was in possession, and there was no evidence, even that the force used to the wife caused him to leave.

In an approved case, Willard v. Warren, 17 Wend. 262, the court held that a jury should have been charged that personal terror or force was a necessary ingredient of such an action. In People v. Smith, 24 Barb. 18, citing Willard v. Warren, supra, and The People v. Reckert, 8 Cow. 232, it was said that there must be circumstances of force or terror, and that a mere naked trespass to lands never was yet holden sufficient. A mere trespass will not sustain the action. Wood v. Phillips, 43 N. Y. 158; People v. Field, 52 Barb. 214.

The plaintiff’s testimony was that by reason of the workmen disturbing his premises, he, when he came home, had no home; the floor was torn up; the bureau, bed and everything removed; everything full of dirt and dust; he could hardly wash himself; his wife and babe became sick. “I had no comfort for over a month, from early in March till when I left in April.” He afterwards said that his wife and baby got sick, and the risk was such that I had to take other rooms.

From this it appears, that the cause of the plaintiff’s leaving the premises was not an ouster or eviction by force, but attention to his comfort and the health of his wife and babe. There may have been a trespass but there was no action for forcible entry.

There are, it is said, actions of this kind where the entry is made by force, of a certain kind, upon unoccupied premises. In those cases the entry must be to take possession as a disseisor in fact. That did not occur in this case.

I am of opinion, that in an action for treble damages (§ 1669) there can be only a recovery for damages happening at and after the time of the disseisin, and that whatever is recovered must be for the consequences of the force used to evict.

Those cases that hold that as between landlord and tenant, there may be an eviction by the former of the latter, by means not amounting to physical expulsion, are not applicable to actions for forcible entry and detainer.

I am of opinion that the motion to dismiss the complaint should have been granted at the trial.

Judgment and order appealed from reversed, and new trial granted with costs to abide the event.

Freedman and Trttax, JJ., concurred.  