Weed v. Niles Homes, Inc.

• Decision Date: 16 July 1965
• Parties: Homer H. WEED and Bernice Weed, Petitioners, v. NILES HOMES, INC., Respondent.
• Court: New York District Court

Page 904

262 N.Y.S.2d 904

47 Misc.2d 485

Homer H. WEED and Bernice Weed, Petitioners, v. NILES HOMES, INC., Respondent.

District Court, Nassau County, Second District.

July 16, 1965.

Julius M. Gerzof, Freeport, for petitioners.

Permut & Permut, New York City, for respondent.

FRANCIS J. DONOVAN, Judge.

This is a proceeding pursuant to Article 7 of the Real Property Actions and Proceedings Law.

Petitioner seeks relief pursuant to section 713 of that act on the ground that petitioner was in quiet possession of a vacant piece of land to the rear of his dwelling for more than three years and after such period he was dispossessed by forcible entry by respondent.

The facts are as follows:

Petitioner was in uninterrupted possession of the fenced area shown on petitioner's exhibit 3 in evidence for more than three years prior to the occurrence which gave rise to this proceeding.

The area is approximately twenty feet beyond the rear line of lots 807 and 808 on the amended map of Golf Grounds which was received in evidence. Title to lots 807 and 808 is in the petitioner but there is no evidence to establish title in either petitioner or respondent as to the 20 foot area heretofore described. Respondent entered the 20 foot area over petitioner's protest; tore down the fence which had been erected by petitioner; dug a ditch through the area to relocate and drain a brook and cut the ditch into petitioners' property along a course shown in petitioner's exhibit 4 in evidence.

The proceeding is unique in that neither party attempted to show title to the disputed area and no action has been commenced to establish title to the area or to obtain any injunctive relief. Nor has any action in trespass been commenced to recover damages. The principal issue raised in the briefs of the parties is whether or not the court may grant any relief on the facts proven.

Respondent contends--citing Pisano v. County of Nassau, 41 Misc.2d 844, 246 N.Y.S.2d 733, and Jennings v. High Farms Corporation, 35 Misc.2d 80, 229 N.Y.S.2d 854--that the statute does not apply unless the force applied by the intruder is such that it tends to bring about a breach of peace with threat and menace to life and limb and that a claim of trespass cannot form the basis of a claim of forcible entry.

Petitioner does not seek either compensatory or exemplary damages and points out that the relief under article 7 of the statute and the facts upon which it is predicated are different from those in article 8 of the former Real Property Law, section 535 (now found in Real Property Actions and Proceedings Law, section 853.)

The Jennings case is distinguishable not only on the latter ground but also in view of the fact that the court's disposition was based on a failure to allege adequate facts. The Pisano case is readily distinguishable because it involved an entry by a marshall in a landlord tenant proceeding. An entry under valid process cannot be deemed forcible within the meaning of either statute.

In construing the application of the statute we must bear in mind the obvious purpose, namely, to obtain the settlement of disputes without resort to force of any kind. Obviously if a person has been in quiet possession of premises for three...