Opinion
November, 1911.
Lafay C. Wilkie, for appellants.
Wesley C. Dudley, district attorney (Clifford McLaughlin, of counsel), for respondent.
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 be 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 interference 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.