O'Horo v. Kelsey ( 1901 )

McLennan, J.:

The complaint states a good cause of action.

If the plaintiff assigned to the defendant the land contract executed and delivered to him by Brown, and under which he was entitled to the possession of the premises in question, in consideration of an agreement on the part of the defendant that he would execute and deliver to the plaintiff another contract, which should also entitle him to possession, he was rightfully in occupation of the hotel, and had .a right to use and enjoy the same undisturbed and without interference by the defendant, precisely as if said other contract had been actually executed and delivered; and under such circumstances it would be an invasion of the plaintiff’s rights, and wrongful on the part of the defendant, to commit acts which would render plaintiff’s possession less valuable or useful, and such as would tend to force him to surrender or abandon the same. For such an invasion of his rights and for such acts, if wrongful, the plaintiff is entitled to recover the damages sustained thereby.

It was held by this court, upon the appeal from the judgment overruling the demurrer, that the alleged causes of action- set forth in the complaint are properly united. (37 App. Div. supra.)

The allegations, briefly stated, are: That the plaintiff was lawfully in possession of a hotel; that the defendant, for the purpose of ousting him, forcibly trespassed upon the premises; committed an assault upon the plaintiff ; by false statements induced another to remove the hotel furniture; without process attempted to remove the plaintiff and his family from the hotel1 by force, and, failing in that, attempted to obtain a process of the court by which to accomplish the same purpose, knowing that he was not legally entitled thereto.

If those allegations were established by proof, we think the plaintiff would be entitled to recover in this action all the damages sustained in consequence of those several acts, viz., the damages sustained on account of the trespass committed by the defendant or by his agent, including the damage occa'sioned thereby to the business of the plaintiff; the damage sustained by the plaintiff on account of being assaulted by the defendant or by his agents, if authorized by him; the damages sustained on account of the removal of the furniture under the chattel mortgage in question, if wrongful and it was procured to be done by the defendant, and the fair value of such furniture, less what was due and owing upon said chattel mortgage, if it was wrongfully removed or caused to be taken and removed by the defendant; the expense incurred by the plaintiff in defending the proceedings instituted by the defendant to oust him of the possession of the premises, if such proceedings were illegal and not. instituted in good faith. Also the value of the property not included in the chattel mortgage which was taken or destroyed by the defendant while engaged in attempting to dispossess the plaintiff, and taken or removed for the purpose of compelling the plaintiff to vacate the premises.

It is not intended to intimate that upon the proofs in this case the jury were called upon to find that the plaintiff had sustained, or that he was entitled to recover from the defendant, all or any of the items of damage above referred to. They have been enumerated for the purpose of pointing out the issues which were raised by the pleadings and by the proof, and for the purpose of ascertaining whether the rulings of the learned trial court to which exceptions were taken, present such errors as require a reversal of the judgment.

The first exception to which attention is called is to the charge of the court in which the jury are instructed, in substance, that if they find the facts as contended for in behalf of the defendant, and that the defendant acted in good faith, and as a reasonably prudent and cautious man would, under the circumstances, they can find a verdict for the defendant. We think this charge is erroneous. If the defendant had committed trespass upon the plaintiff’s premises; if he had caused him to be assaulted; if he had improperly used the process of the court to oust him from the possession of premises to which he was legally entitled; if, by false statements, he had induced the mortgagee in the chattel mortgage to take possession of the mortgaged property to the damage of .the plaintiff, it was entirely immaterial whether the defendant acted in good faith in doing or causing those things to be done or not; or whether he acted as a reasonably prudent and cautious man would have acted under the circumstances. For each one of the acts above enumerated, if wrongful, the defendant was liable for at least the actual damages which they occasioned the plaintiff, * Besides, it may Tie said, although it is of minor importance, that the defendant admitted that he took one article of property, to wit, a music stool of the value' of seventy-five cents, which was not cov. ered by the chattel mortgage, and, therefore, the plaintiff was at least, and under any view of the case, entitled to judgment for that amount, and the charge that the jury might find a verdict for the defendant was erroneous. •

We think the court erred in refusing to permit, the jury to. consider the question of the value of the chattel mortgage property taken by the defendant. It was, alleged, and there was proof tending to show, that no facts existed which would justify the mortgagee, Perkins; in deeming himself unsafe and taking possession of the property, and that he was induced to do so solely by the false statements made by the defendant to him, and made for the purpose of inducing him to act in. such manner with reference to the property as would compel the plaintiff to surrender or abandon the. possession of the hotel, and that the taking of the property was in fact defendant’s act. Under those circumstances, we think, it was proper for the jury to know the value of the property, its character, how essential, if essential it Was, to the management and conduct of the hotel. The mortgagee, Perkins, testified that he would not have sold' the property or foreclosed the mortgage had! it not been for defendant’s story to him that he was going to move the property out of the hotel and obtain possession of the premises.

We think the court also erred in not permitting the plaintiff to prove the value of the attorney’s services in defending the summary proceedings instituted by the defendant for the removal of the plaintiff from the premises. The charge is, and there is some proof tending to show, that such proceedings • were instituted by the defendant willfully and for the purpose of carrying out his plan to obtain possession of the premises to which he knew he was not entitled. We think proof of the reasonable expenses incurred by the plaintiff in defending his possession against such an assault was proper to be considered by the jury.

■The learned trial court erred in refusing to allow the plaintiff to show that he did not run his hotel in the summer following the alleged illegal acts of the defendant, and from showing facts tending to prove that he was prevented from so doing by such acts. If the plaintiff’s furniture was illegally removed by or under the direction of the defendant, and the plaintiff could not with reasonable diligence have replaced it in time to ran the hotel the following summer, the damages he sustained thereby were recoverable in this action.

For those errors the judgment should be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

Note.— The rest of the cases of this term will be found in the next volume 61 Ápp. Div.— [Rep.