Edward Bach, Respondent, v. Jacob New, Appellant

Edward Bach, Respondent, v. Jacob New, Appellant. Forcible entry and detainer—proof .of personal violence essential to it — treble damages,, under Code Civ. Proc, § 1669. Evidence of personal violence is requisite to support an action for forcible entry and detainer; and where, in such an action, if does not appear that any violence attended the entry beyond wrenching off the lock of a stable, and that all that occurred in reference to the detainer was a simple demand- by the plaintiff for the premises and a refusal by the defendant of such demand, the court is not authorized to award treble damages under the provisions of section 1669 of the Code of Civil Procedure. Appeal by the defendant, Jacob New, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of-April, 1897, upon the verdict of a jury; also from an order enteredin said clerk’s office on the 1st day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 1st day of April, 1897, awarding the plaintiff three times the amount of the verdict rendered by the jury under section 1669 of the Code of Civil Procedure. '. This action was brought to recover damages for an alleged forcible entry and detainer made by the defendant upon premises owned by him, but occupied by the plaintiff as the defendant’s tenant. James C. Cropsey, for the appellant. S. S. Gowdey, for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: The appellant, in his points and upon the argument of the appeals in this case, having stated that he did not desire the court to consider the questions raised upon the appeal from the judgment and order denying motion for new trial, in case the court should come to the conclusion that the order trebling the damages was improperly granted, we do not deem it necessary to discuss any of the exceptions or questions raised upon the record in reference to the judgment and order denying motion for new trial. There seems to be no evidence justifying the order trebling the damages, even if such an order could be made, where the complaint contains no further or other allegations.or demands than does the one in this record. Even in the cases cited by the respondent, of which Pharis v. Gere (110 N. Y. 336) is a sample, the rule is recognized that more than mere words is needed to make a forcible detainer, and that'personal violence must be shown .in order to support the action. In the case at bar the entry was made without personal violence, and possession of the premises was detained without personal violence. AH that occurred in. reference to .the • detainer was that the plaintiff made a demand.for the premises ; that he went to the defendant and asked him, “ How about that stable; what are you going to do ; keep me out of it any longer ? ” to which the defendant replied, “ Well, what are you going to do now? Mr. McOan is in; you can’t get in any more.” That is all that occurred between the parties ■—• no violence, simply a refusal of a demand. The plaintiff was put in no fear or peril. Hence, there was no forcible detainer. It is conceded that the entry was without violence except so far as the wrenching off the lock of the stable was concerned. Heither the defendant nor any of his servants used any other violence. Under these circumstances, there was no foundation for the order which the court made trebling the damages, and the same should, be reversed and the judgment reduced to the sum of $586.47, being ■ damages, $400; extra allowance, $20, and costs as taxed, $166.47. As so modified, the judgment should be affirmed, without costs. .. Barrett, Rumsey, Williams and Patterson, JJ., concurred. Judgment modified by reducing same to $586.47, and, as so modified, affirmed, without costs.