Smith v. Felt , 1868 N.Y. App. Div. LEXIS 19 ( 1868 )

George G. Barnard, P. J.

The evidence was sufficient to charge the defendant George H. Felt. He was present at the" commission of the injury. He had heard his mother had been threatened, and went with her, to see that she was •net annoyed or insulted. He told the tenant in possession, who remonstrated with his mother, that he had better attend to "his business and let the plaintiff’s husband attend to his. He personally knocked the fence from the cow house with an axe and continued present during the whole time of the removal of the property.

The action was properly brought. The injury was to the inheritance, and was one in which the actual possessor had no interest- beyond the mere entry. The statute was doubtless passed to meet just such cases. (2 B, S. 39, § 8.) The cases cited by the defendants do not bear upon the question presented under the facts as proven here.

[New York General Term, January 6, 1868.

The case of Frost v. Duncan, (19 Barb. 560,) was an action of trespass, brought by a person out of possession for " some seventeen years, and against the person in possession for that length of time, claiming under a deed adverse to the plaintiff’s title. The court held that the action would not lie. In Holmes v. Seely, (19 Wend. 507,) which was also an action of trespass, guare clasum fregit, the defendant had .encroached, in building á line fence, on the plaintiff’s lands, then in possession of a tenant. The plaintiff brought the action, and the court held that for the entry the tenant must sue. That for a continuing injury the plaintiff could not have his action of trespass, until a re-entry. Here the action is against a stranger, for an injury to the freehold.

The evidence is sufficient to sustain the judgment. By the doing of the acts complained of, the yearly rental of the property was lessened $100. $250 is not an unreasonable

sum to compensate foi an injury which produced this result.

The judgment must be affirmed, with costs.

Sutherland, J. concurred.

Ingraham, J. dissented.

Judgment affirmed.

Geo. G. Barnard, Sutherland and Ingraham, Justices.]