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App. Div.] Second Department, October, 1911.
Adams, 115 N. Y. 55; Birch v. City of New York, 190 id.
397; Englehardt v. Central New England R. Co., 139 App.
Div. 786.)

The judgment appealed from should be affirmed, without costs.


Present CARR, JJ.

Judgment modified by striking out the words “upon the merits” and as so modified judgment unanimously affirmed, without costs.

MARY A. NICHOLS, Respondent, v. JOHN E. Eustis and


Second Department, October 20, 1911.


saving objection until appeal - forcible entry on premises

- ejectment of tenant-lease-damages.

Where a lease of park lands having buildings thereon owned by the

lessee has been received in evidence without objection, it is too late on appeal to raise the point that there is no evidence that the park board

authorized the execution of the instrument. Where laborers under the direction of the defendants broke down the door of one of the buildings, tore out the windows and broke in the side of another building in which plaintiff lived, there was a forcible entry within the meaning of section 2233 of the Code of Civil Procedure for which damages may be recovered in a civil action. (Code Civ. Proc.

S 1669.) Even though the lessee's term had expired defendants were not justified

in forcibly ejecting her from the premises.

APPEAL by the defendants, John E. Eustis and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 27th day of June, 1910, denying the defendants' motion for a new trial made upon the minutes.

Second Department, October, 1911.

[Vol. 116. Tallmadge W. Foster [William D. Peck with him on the brief], for the appellants.

Frank E. Carstarphen [John A. McEveety with him on the brief], for the respondent.


The instrument executed on December 2, 1901, was in form a lease for a period of five years from the 2d day of December, 1901, of land situated in Pelham Bay Park, in the berough of the Bronx. It granted to plaintiff the use of the park land upon which “stand the premises owned by her.” In view of the evidence, which was not disputed, that at that time there were buildings upon the park lands which were her property, the word “premises,” though somewhat inapt, may be construed as meaning buildings. The subject of the agreement was, therefore, land, and it is not disputed that plaintiff was in the actual possession thereof up to April 6, 1903. In this respect this case is distinguishable from Becher v. City of New York (102 App. Div. 269). It is true that there is no evidence that the park board authorized the execution of the instrument. (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, S 616.) But when offered in evidence it was received without objection. Non constat but if objection had been made to its competency all the necessary prerequisites to its execution might have been proved. The evidence clearly establishes that on the 6th of April, 1903, the defendant Peters, with a gang of laborers acting under the direction of the defendant Eustis, went upon the premises, broke down the door of one of the buildings, tore out the windows, tore out the sides of another building in which plaintiff with her children were then living, tore off the roof, and made it impossible for her to occupy the same. We think that these acts constituted a forcible entry within the meaning of the statute. (Code Civ. Proc. $ 2233; 19 Cyc. 1112.) Although originally proceedings under the statute for forcible entry and detainer were in their nature criminal, the violation of such statute is now sufficient basis for a civil action for damages. (Code Civ. Proc. § 1609; I’ood v. Phillips, 4:3 N. Y. 152, 157.) The defendants contend that although the agreement with plaintiff

App. Div.]

Second Departinent, October, 1911. was for a definite term which had not expired, a contract of such a character “must be construed as made subject to what we may term the governmental or legislative power” of the authorities having control of the subject-matter thereof for the public use, and that in a proper case such agreement may be terminated in the interests of the public. (New York Mail & Newspaper Transportation Co. v. Shea, 30 App. Div. 266; Gushee v. City of New York, 42 id. 37; Gredinger v. Higgins, 139 id. 606.) But if the acts of defendants constituted a forcible entry, it is a matter of no consequence that the term of occupation specified in such instrument had been lawfully termi. nated. Plaintiff was still in occupation of the premises, and defendants were not justified in forcibly ejecting her therefrom. “The party so using force and acquiring possession may have the superior title or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own hand and by violence.” (Iron Mountain & Helena Railroad V. Johnson, 119 U. S. 608.) Moreover, defendants could not terminate an agreement of this character unless the determination so to do was made in good faith and in furtherance of the public interests. Upon the trial of this action the jury found a general verdict for the plaintiff, and in addition thereto, without objection from any of the parties, found specially upon the following questions of fact stated in writing (Cole Civ. Proc. § 1187), namely: (1) Did the defendants in doing the acts set forth in the complaint act in good faith? (2) Did the defendants in doing such acts act capriciously? (3) What is the damage which resulted to the plaintiff from the destruction and loss of buildings and personal property? The trial court further instructed the jury that the acts referred to consisted “in going upon the premises on the 6th day of April and causing these buildings to be destroyed, torn down.” The jury answered the first question in the negative and the second in the affirmative, and fixed the damages at $4,000. By stipulation the question of the amount of damages is eliminated

The evidence fully sustains the findings of the jury upon the remaining questions. Even if plaintiff's right

from the case.

Second Department, October, 1911.

[Vol. 146. of possession had been lawfully terminated defendants' method of regaining possession was clearly unlawful.

The judgment and order denying a motion for a new trial should be affirmed, with costs.

JENKS, P. J., CARR, WOODWARD and Rich, JJ., concurred.

Judgment and order affirmed, with costs.


Guardian ad Litem, Respondent, v. ASTORIA VENEER MILLS, Appellant.

Second Department, October 27, 1911.

Master and servant- negligence - injury by unguarded cogwheels

machine which servant was not required to approach – when Labor Law not applicable – erroneous charge - exception to denial of motion to dismiss — slippery floor, when not proximate cause of accidentwhen master not liable for unreasonable direction of foreman - detail of work.

A servant employed solely to nail cleats upon boards after they were

delivered in the yard of his master's mill by a mechanical conveyer running upon rollers and operated by cogs, and whose duties had no relation whatever to the conveyer, and who was injured by slipping and falling against the cogs of the conveyer, which were unguarde), has no standing under the provisions of the Labor Law, except as the fact that the cogwheels were unguarded may bear upon the question of a

reasonably safe place in which to work. Although in an action to recover for injuries so caused there was no objec

tion to an erroneous charge by the court as to the master's liability for directions given to the plaintiff by a superintendent, the error is available under defendant's exception to the denial of his motion to dismiss the complaint and a denial of his motion for a new trial made on the

customary grounds. Where the plaintiff was not required to be near the mechanical conveyer

in order to perform his duties, it cannot be said that the slippery gondition of the floor near the conveyer was the proximate cause of the accident rather than an alleged direction by the defendant's foreman to

the plaintiff to place the boards under the conveyer. Where the plaintiff in the performance of his work was not required to be

near the conveyer, his master owed him no duty to see that the door

near it was in a safe condition. Where the Employers Liability Act has no application to an action to

recover for injuries so caused, the master having provided a competent

App. Liv.] Second Department, October, 1911. foreman, proper tools and appliances, and a safe place for the plaintiff to work in the performance of the duties required of him, was not bound to anticipate that his foreman would order the plaintiff to do things inconsistent with the efficiency and economy of the work by telling him to place boards under the conveyer, which exposed him to the risk which caused the accident. In other words, he was not bound to follow up the foreman to see that he did not issue unreasonable orders, that being one of the risks implied by the contract of employment. At common law a master is not liable for the negligent performance of some detail of work intrusted to a servant, whatever may be the grade of the servant who executes the detail,

APPEAL by the defendant, the Astoria Veneer Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of February, 1911, upon the verdict of a jury for $1,200, and also from an order entered in said clerk's office on the 7th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

Warren C. Van Slyke [George M. Pinney, Jr., and James B. Henney with him on the brief], for the appellant.

George F. Hickey [M. P. O'Connor with him on the brief], for the respondent. WOODWARD, J.:

The complaint alleges the employment of the plaintiff by the defendant at its veneer plant at Ryker avenue, Astoria, and that “while in the lawful performance of such work, and without any fault whatsoever on his part, his hair was caught in certain unguarded and unprotected cogwheels, being part of the machinery in defendant's said mills, and this infant plaintiff was pulled in by the hair and a portion of his scalp was torn off and his head was seriously injured, and all of which was sclely caused by and solely the result of the negligence and carelessness of the defendant, its agents and servants, in failing to give this infant plaintiff a reasonably safe and suitable place in which to perform his work, and in failing to properly guard and protect the said cogwheels in which plaintiff's hair was caught, but on the contrary leaving the same unguarded and unprotected, in violation of the provisions of chapter 415 of the Laws of 1897, known as the · Labor Law of the State of

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