
    Henry Ofschlager, Plaintiff, v. John G. Surbeck, Defendant.
    (Supreme Court, Onondaga Trial Term,
    February, 1898.)
    Malicious prosecution —Want of probable cause—Status of plaintiff’s husband, whether servant or tenant.
    Where the proof,, in an action for malicious prosecution, tends to show that the assault for which the defendant- caused the plaintiff’s arrest consisted, as she alleges, in her resistance to his entrance upon premises of which she and her' husband claimed to be bis tenants, and the testimony upon that question shows that the defendant had deducted from the wages of the husband, who was also in his service, moneys for rent, and had, in two affidavits used in judicial proceedings, stated, in one case, .that he had rented the premises to both husband and wife and, in the other case, that he had rented them to the husband, the question whether the husband was servant or tenant is properly left to the jury.
    Motion by defendant upon the minutes to set aside a verdict rendered in behalf of the plaintiff and for a new trial.
    William Nottingham, for motion.
    Walter W. Magee, opposed.
   Hiscock, J.

This -action was brought to recover, damages for an alleged malicious prosecution. The defendant caused the arrest of plaintiff upon the charge of assault in the third degree. She was tried and acquitted -and this action brought. The important question herein whether defendant had probable cause for instituting said criminal proceedings is largely dependent upon the character of the occupation had by plaintiff and her husband of a certain house belonging to defendant. For concededly, upon the occasion complained of by defendant in his criminal proceedings, plaintiff did commit upon defendant what, without justification, would he an assault. She claims, and the jury had a right to find as it did, that she did whatever was done by her upon that occasion to prevent defendant from entering the house occupied by her husband and herself, and-she further claims that she had a right to do so because they were in possession of said house as tenants. The defendant, upon the other hand, claims that her husband was in occupancy simply as a hired man and that defendant had retained possession of the premises and, therefore, had a right to enter, as he was attempting to do, and that there was nothing to justify plaintiff’s acts >or to- relieve them from the character of an assault such as was charged in his criminal proceedings.

Upon the trial it was left to the jury to. determine as a question of fact whether the 'occupancy of plaintiff’s husband was that- of tenant or of a mere hired man. It is. insisted by defendant that this was. error and that the court should have held as matter of law that the occupancy was of the latter character. Consideration of the evidence at length upon this motion, however, convinces me that the disposition made upon the trial was correct and was as favorable to defendant as he could ask.

Defendant was the owner of a farm of about forty-five acres upon which there-was the house in question. -January 6, 1893, a written memorandum was made and signed by defendant and plain-' •tiff’s husband which-, amongst other things, provided .as follows: The above-named William Ofschlager agrees to work- for j. G. Surbeck on his farm * * * , from March 1, 1893, .to March 1, 1894, and to faithfully perform the duties assigned to him and keep the part, of the house occupied by .him and his family in good order. In return J. G. Surbeck agrees to pay William Ofschlager as follows: Twenty-six dollars per month for the first eight months, $208. Twenty dollar's per. month for the following four months, $80. In addition to the above, house rent at $10 per month, $120,” etc. So far as the question under discussion is concerned, plaintiff’s husband seems to have entered info and continued in the occupation of the house in question under the above agreement until shortly before the month of March, 1896, when, the alleged assault of plaintiff upon defendant took place, and as Ofschlager swears each month $10- was deducted by defendant from his wages ■ for the house: The defendant testifies that in February of that year he refused -to' extend said agreement for another year, but made a new parol agreement. The details of such agreement are very meagerly stated in the evidence. The defendant says he told plaintiff’s husband that after the 1st of March he could only stay there from “ day to day.” Plaintiff’s husband swears that defendant deducted $10 from his wages for the said month of March for rent of house and defendant testified upon the subject as • follows:

“ Q. Sow much was paid by' Mr. Ofschlager for the month of March, 1896, when you settled with him;-ho-w much did he-pay for the house?

A. There was nothing said about paying for the house.

“ Q. Didn’t he pay the usual $10 for the month of March?

“A. Ho sir, he never paid it; we allowed so much, the same as we had done.

“ Q. So that $10 was paid by him for this month.of March, 1896?

Objected to.

“ The Court.— Was allowed.”

In addition, certain declarations of defendant in regard to this last arrangement were proved. In an affidavit filed upon which to procure a warrant against plaintiff he swore that upon the occasion of the alleged assault he “ Attempted to gain access to a portion of said house (in question) which this deponent had reserved for his own use, having let and rented the other portion to the defendant and her husband.” And subsequently he presented a petition for the removal of plaintiff’s husband as a tenant holding over from the premises in question, and in which petition, so made by him, was amongst other things the following allegation: That on or about the fore part of February, 1896, your petitioner above named as landlord let and rented said real property, house and premises unto William Ofschlager for the term of one month from the 1st day of March, 1896, which said term has expired.” There, was no evidence aside from that of .the general situation to .indicate that the occupation by plaintiff’s husband of the house in question was connected with or necessary to the performance of the services which he was hired to perform, or that such occupation was required for the necessary or' better performance of the services which he was to perform.

If the rights of the parties were to be determined solely by reference to the written agreement heretore quoted from, I should hesitate' to decide as matter of law that Ofschlager’s occupancy was simply that of a hired man.

Where a person lawfully enters upon premises as- a place of abode and occupies them as such the presumption is that such occupancy gives possession thereof to him and does not leave such possession in another, as in this case, the defendant, and any less right than that which possession furnishes is dependent upon some understanding, express, or implied, denying such relation. Bristor v. Burr, 120 N. Y. 427, 433.

The mere fact that the relation of master and servant existed does not preclude the creation and existence .of the other relation of landlord and tenant. It does Uot seem to me that the occupation of this particular house was so essential to the performance of the services to "be rendered by plaintiff’s husband, or that it was so much more conducive- to that' purpose than any, other house which he might have paid for, as to settle this question in favor of defendant.' But farther than that, the memorandum of hiring in treating of this subject expressly provides that the person occupying the house is to keep it “ in good order,” and that the house rent is to be $10 per month, which rent, it- is testified, was deducted from month to month .from the wages paid. These latter provisions are all incidents of a lease rather than of a mere occupancy as -a hired man. The allowance or deduction from wages of a specified sum as rent for the use of premises is always a material circumstance to prove the existence of a lease in such case. McGee v. Gibson, 1 B. Monroe, 105; cited, 6 Lans. 184; Kerrains v. People, 60 N. Y. 221-226, 227; People v. Annis, 45 Barb. 304, 306; Doyle v. Gibbs, 6 Lans. 108, 182.

Upon the facts above stated the case seems to1 be one of a tenancy within the principles laid down in Hughes ,v. Chatham, 5 M. & G. 54, and cited with approval in Kerrains v. People, supra. ■ The. facts in that case were that a master ropemaker in a royal dockyard had, as such, a. house in the dockyard for his residence, of which he had the exclusive .use, without paying rent, -as part remuneration for his services, no part of it being used for public purposes. If he had not had it, he would have had an allowance for a house in addition to his salary. It was held that the rope-maker occupied as a tenant and not as a servant, and the court said: “ There is no inconsistency in the relation of master and servant-with that of landlord and tenant. The. master may pay his servant by conferring upon him an interest in real property, either in fee, for years or at will, or for any -other estate or interest, and if he do so the servant then becomes ‘entitled to the legal incidents of the estate as much as if it were purchased for.any other consideration. * * * And as there is nothing in the facts stated to show that the claimant was required to occupy the house for the performance of his services, or did" occupy in order to their performance, or that it was conducive to that purpose more than any house which he might have." paid for in' any other way than by his services, and' as the case expressly finds that, he had the house as part remuneration for his services, we cannot say that the conclusion at which' the revising barrister has arrived is- wrong.”

In this case, however, at the time when the occurrences in question took place there is evidence that the original memorandum had ■ceased to govern, and that a new arrangement had been made between defendant and his hired man. The details of that arrangement as described are more or less indecisive. But it does appear that defendant had received $10 for the occupation of the premises deducted or allowed from the wages which he paid to plaintiff’s husband, and he himself, upon various occasions, swore, in substance, that this new arrangement was a lease, for the month of March. Under these last circumstances it certainly cannot be said that the evidence proved beyond any question am occupancy as a hired man and that there was nothing to indicate a lease and no- evidence from which upon that subject conflicting inferences might not be drawn. .If there was any evidence which tended to support the theory of a lease or which permitted different inferences it was proper to submit to the jury to find what were the-actual relations with reference to this house between the parties. Kerrains v. People, supra; Wood’s Law of Master and Servant (2d ed.), p. 306; State v. Hayes, 59 N. H. 450; Handford v. People, 7 Week. Dig. 528.

It was also urged upon this motion that the verdict was excessive. It was undoubtedly liberal but I do not think that it can be said that it was so: large as to- come within the rules applicable to setting aside verdicts as -excessive.

The motion for a new trial, therefore, is denied, with $10 costs.

Motion denied, with $10 costs.■  