App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. Griebel mentioned in the title of this action, and the Ferdinand Grueble mentioned in the article, as published, are not the same persons, that conclusion was wholly unsupported by the evidence and should not be permitted to stand." A motion for a new trial was made upon the ground that the verdict was contrary to the evidence, and the order denying the motion is appealed from, which brings to this court the question that the verdict, in so far as it finds that the plaintiff was not the person referred to in the article, is unsupported by the evidence. The learned judge presiding at the trial under review fell into an error in not following the rule laid down by the General Term. The article complained of purported to be a report of a judicial proceeding, and if the report had been fair and true it was privileged unless published maliciously (Code Civ. Proc. § 1907); and it was competent for the plaintiff to prove that the report was not fair and true, and that he did not go to the house of Connors and get his watch as stated in the article; and the refusal of the court to permit the plaintiff to prove this fact was error. It is alleged in the complaint that the article was maliciously published, but there is no evidence that there was any malice in fact personal ill-will as distinguished from malice in law. It was simply a negligent publication, which was promptly retracted the next day; but a newspaper negligently publishing a libel is liable for the damages sustained by the person libeled, though the publication was not made from malicious motives- malice in fact. The judgment and order should be reversed and a new trial granted, with costs to abide the event. All concurred. Judgment and order reversed and a new trial ordered, with costs. to abide the event. FOURTH DEPARTMENT, JULY TERM, 1896. [Vol. 8. GEORGE MADDEN, Respondent, v. CLARENCE G. BROWN, Appellant. Trespass - an owner may remove his property from the premises of a wrongdoer, provided he does not commit a breach of the peace nor use unnecessary force. In an action brought to recover the damages resulting from an alleged trespass upon the plaintiff's premises and for injury done to his furniture, etc., it appeared that the defendant entered upon the premises with an officer, who had a search warrant authorizing him to do so, and that all of the property in question which was removed therefrom was owned by the defendant and had been taken by the plaintiff wrongfully, except a drafting board and mirror which the plaintiff had held for the defendant, under an agency which had terminated. The trial judge instructed the jury that the defendant had no right to enter the plaintiff's house and remove his own property without the consent of the plaintiff or of his wife. Held, that this instruction was erroneous; That the owner of personal property, which has been wrongfully taken from him, does not commit a trespass by entering upon the realty of the wrongdoer and retaking his own property, unless he commits a breach of the peace or uses unnecessary force; That the defendant was justified in entering the dwelling peaceably, and in removing certain of the plaintiff's books, pictures and articles of furniture, from his own (defendant's) property in order that he might take that property, and was not liable for any confusion which necessarily resulted from such action on his part. APPEAL by the defendant, Clarence G. Brown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of November, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk's office on the 13th day of November, 1895, denying the defendant's motion for a new trial made upon the minutes. This action was begun March 19th, 1895, to recover damages for an alleged trespass in entering, December 19th, 1894, the plaintiff's dwelling, injuring the furniture, pictures and ornaments therein, and wrongfully carrying away a drafting board and supports thereof and two squares. It is alleged that this trespass was committed by the defendant personally, aided by several men acting under his direction; that he moved the furniture and the contents of the house about, leaving it in great confusion, and that the conduct of App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. the defendant and his assistants was violent and disorderly. The defendant in his answer set up two defenses: (1) A general denial; (2) that, December 19th, 1895, a search warrant was issued by the Court of Special Sessions of the city of Syracuse, directed to an officer of said city, commanding him to search for certain personal property of the defendant which had been taken and carried away from his premises; that on that date an officer, accompanied by the defendant, searched the plaintiff's dwelling, pursuant to the command of the warrant, and carried away certain articles of the defendant's property found in the dwelling; that the defendant did nothing except to identify his property, and that the search was conducted in a proper manner. The jury rendered a verdict for $1,000 The defendant moved on the minutes for a new trial on all the grounds specified in section 999 of the Code of Civil Procedure, which motion was granted unless the plaintiff stipulated to reduce the damages to $500; and, in case the stipulation was given, the motion was denied. The stipulation was given and the judgment entered for $500 damages and $91.41 costs. Frank Hopkins, for the appellant. Ceylon II. Lewis, for the respondent. FOLLETT, J.: The defendant testified that he owned all the articles taken, and the plaintiff, who was sworn in his own behalf, did not testify that he had any title or right of possession to any of the articles. The learned trial judge instructed the jury that the defendant had no right to enter the house and remove his property without the consent of the plaintiff or of his wife, to which instruction the defendant excepted. The case was tried and submitted to the jury on the theory that, in case it was found that the defendant entered the house and removed his own property without the consent of the person in charge thereof, he committed a trespass and was liable in damages therefor. It is well settled that the owner of personal property, which has been wrongfully taken from him, does not commit a trespass by entering upon the realty of the wrongdoer and taking his own property, unless he commits a breach of the peace or uses unnecessary force. (Webb v. Beavan, 6 M. & G. 1055; FOURTH DEPARTMENT, JULY TERM, 1896. [Vol. 8. Patrick v. Colerick, 3 M. & W. 483; Blades v. Higgs, 10 C. B. [N. S.] 713; McLeod v. Jones, 105 Mass. 405.) An examination of the text books, under the title Recaption, will disclose many authorities supporting this rule. In Addison on Torts (3d ed. 347) the rule is stated as follows: "If A. has actual possession of a chattel, and B. takes it from him against his will, A. may use as much force as is necessary to defend his right and enable him to retake the chattel; and if a chattel has been seized and carried away by a person who has no colour of title to it, and the owner comes in and demands it, and the trespasser refuses to give it up, the owner may use force sufficient to enable him to retake the property. A person, therefore, who has been robbed is entitled to retake the stolen property wherever he can find it, provided the person in possession of it has not acquired a title to it by purchase in market overt, without notice of the robbery. He is not justified in committing an assault or a breach of the peace in order to possess himself of the property, unless he finds it in the hands of the thief or the felonious receiver." Many cases to the same effect are cited in Moak's Underhill on Torts (359 et seq.) in 19 American and English Encyclopædia of Law (1093), and in Pollock on Torts (4th ed. 346), title Recaption. The rule rests on the theory that, where a person places the goods of another upon his own premises, he gives to the owner of them an implied license to enter for the purpose of taking them. In McLeod v. Jones (supra) it was held that this rule extended to and covered cases where the goods had been taken in the first instance by permission. It was said: "In other cases a right or license to enter upon land results or may be inferred from the contracts of the parties in relation to personalty. Permission to keep or the right to have one's personal property upon the land of another involves the right to enter for its removal." In the case at bar it was conceded that all of the property, excepting the drafting board and its supports and one mirror plate, was taken by this plaintiff wrongfully, if not feloniously; and that, as to the drafting board and the mirror, he held them as the defendant's agent and for his use; and that the relation of master and servant, out of which the right of this use arose, which had once existed between them, had been terminated. It follows that as to the property App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. which had been feloniously or wrongfully taken from the defendant's possession, he had the right to use sufficient force to retake it from the dwelling of the wrongdoer, provided he entered peaceably, did not commit a breach of the peace or use unnecessary force. As to the property which had been placed in the plaintiff's possession by the defendant's consent, the latter had the right to take it from the dwelling, and was not a trespasser in so doing, provided he entered peaceably, did not use force or commit a breach of the peace. The defendant entered the dwelling peaceably, and the evidence falls far short of showing that he committed a breach of the peace, or that he used any violence towards the wife of the plaintiff, who was in control of the house. It is testified that the defendant removed books, pictures and articles of furniture from his own property in order that he might retake it. This was justifiable, and the fact that the articles were left standing on the floors of the house and the rooms necessarily left in some confusion did not render him liable in damages. If it be said that the defendant unnecessarily opened a trunk and scattered about the rooms some of the correspondence of the plaintiff, it should be answered that the case was not sent to the jury upon the theory that he had a right to enter the house and was liable only in case he committed unnecessary acts. The jury should have been asked to find whether the defendant committed any acts while in the house which were unnecessary and in excess of the authority conferred upon him by law. If he committed such acts, he was liable in trespass and became a trespasser from the beginning; but he was not liable in damages for taking his own property, and the jury should have been so instructed. The jury found a verdict for $1,000 damages, which shows that they were influenced by passion or prejudice, or by the erroneous theory upon which the case was submitted. The damages were reduced to $500 by the learned trial judge, but we think that sum was excessive for the amount of damages sustained. The plaintiff gave no evidence tending to show that the damages inflicted amounted to one dollar, and how the plaintiff can be held to be entitled to recover $500 in such a case, in which he expressly disclaimed any right to recover punitive damages, and in a case in which it was conceded that the defendant did not act maliciously, is difficult to understand. APP. DIV.-VOL. VIII. 58 |