
    Albert Labro, Resp’t, v. Annie Campbell, App’lt.
    
      (New York Superior Court, General Term,,
    
    
      Filed June 20, 1888.)
    
    1. Treble damages—Code Civ. Pro. § 1669—What recoverable.
    In an action to recover treble damages under Code Civ. Pro. § 1669 for the disseizin or ejection of a person in a forcible manner from real property there can only be a recovery for damages happening at and after the time of the disseizin and whatever is recovered must be for the consequences of the force used.
    
      2. Same—Mere trespass will not sustain action for forcible entry —Code Crv. Pro, § 2233.
    A mere trespass will not sustain an action for a violation of Code Civ. Pro. §2233 (a forcible entry into real property; there must be circumstances of force or terror.
    Appeal by defendant from judgment entered upon a verdict of a jury and from order denying motion for a new trial.
    
      Charles Donohue, for app’lt; Joseph N. Goldbacher, for resp’t.
   Sedgwick, J.

The action was for a violation of section 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 lie at common law for forcible entry and detainer.

The complaint demanded treble damages under section 1669, which provides if a person is disseized, 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 here, 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 incontrovertibly 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 defendant was the plaintiff or had the right to prosecute such an action. If she left the premises by reason of the force she was nob the possessor of the premises. The defendant, 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. Rickert (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; The 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, when 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 disseizer in fact. That did not occur in this case.

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

Those cases that hold 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, new trial granted, with costs to abide the event.

Freedman and Truax, JJ., concur.  