Tischler v. Knick , 57 N.Y.S. 3 ( 1899 )

MacLean, J.

It appeared in evidence that the owner of Mo. 61 Pike street in the borough of Manhattan, Mew York, in the month of May, 1898, took proceedings to dispossess the tenant, one Brill. These proceedings resulted in a judgment, final order and precept for the dispossession of Brill, but there was no proof of the service or execution of the judgment, final order or precept. The petitioner testified that on May 31st, a lease of the premises was executed by the owner to him, and that between 5 and 6 o’clock in the afternoon of the 1st of June, he went to the store with the owner’s agent, who gave him the keys; that Brill was in the store with some people, customers; that he told Brill that the place belonged to him, that he had paid the rent, and got the lease and that Brill had got to go out; that Brill replied, “ all right, and to please give him a chance as he wanted to stay there until the next morning to get some things out belonging to him; ” that the petitioner then left Brill on the premises until the next morning to get his things out; that he went to the place in the morning and saw some strange people there; that he did not get possession, did not do anything, but took counsel, and the trial was not yet finished. Brill testified that he went there the next morning; that he went to the brewery and got back to the premises at half-past 6, and found a whole crowd there; that he wanted to go behind the bar, and that some one called the sheriff, took him by the collar anl threw him outside. Another witness for the petitioner testified that he was in the place on the same 2d of June between 3 and 4 o’clock; that there were there four people and a couple more whom he did not know; that when Brill came back he wanted to go behind the bar, and the defendant called the sheriff and pushed him away. This was contradicted by several witnesses. It is, however, all the evidence respecting violence. The evidence at the most tended to show the commission of a trespass, and not that violence which is the gist of forcible entry and detainer. Whether Brill was maltreated or not when he wished to go to the bar is of no moment in this proceeding. 'If assaulted at all, he was not assaulted with reference to the entry upon, or detention of, the premises. According to the petitioner’s own statement, Brill had no rights upon the premises, having been dispossessed by the owner, and having been left in the place by the petitioner only until the next morning to get his things out. Brill, it is true, testified that he had offered to remain as agent, but there is no statement that his offer was accepted, nor is there anything to show how the crowd of strange people who are said to have been found in the saloon, entered the premises.

The judgment of the Municipal Court should be reversed, with costs.