Vallauri v. W. C. Loftus & Co.

Leventritt, J. This proceeding was taken for forcible entry and detainer. It appears that the petitioner was, on the 20th of July, 1898, the occupant of a certain store at ¡No. 1189 Broadway, and of the adjoining basement. The defendant claimed right of possession to the basement, but a partition prevented access thereto. During the absence of the petitioner a carpenter, employed by the defendant, removed a substantial portion of the partition, and entry was thereupon made. At this stage the plaintiff returned and found the carpenter and the defendant’s porter on the-premises. She remonstrated and then voluntarily left the basement. There was no intimidation, no threats were made, and no-force or violence was used against her. She admits that the man was quietly proceeding with the work, and was courteous and polite. The petitioner relies solely upon the partial removal of the partition to establish the forcible entry and detainer, having made no further attempts to regain possession of the basement. [761] The state of facts disclosed are insufficient to sustain the proceeding. The petitioner relies solely on her allegation of forcible entry,.there being no pretense of forcible detainer. We find in the facts disclosed, at most, a mere trespass. There is an absence of' all the elements essential to the maintenance of the proceeding. The entry was not riotous, or accompanied with any force, violence, threats, or intimidation. The mere -unauthorized removal of a< portion of the partition cannot convert the peaceable entry into- a forcible one. People v. Smith, 24 Barb. 16; Wood v. Phillips, 43 N. Y. 157; Willard v. Warren, 17 Wend. 257. Under the authorities we are constrained to reverse the order. Freedman, P. J., and MacLean, J., concur. Order reversed, with costs to appellant to abide event.