These defendants, claiming right to enter under color of a conditional contract of sale of personal property, entered the *509premises of Elizabeth Stewart in. the city of Buffalo, for the purpose of obtaining possession of a stove, claimed by defendants to belong to them for the reason that it had not been paid for under the terms of said contract of sale. There is a dispute as to appellants’ rights under this contract, which is of no materiality, if I am correct in the conclusion which I reach.
The immediate entering of the premises was not forcible, but the complaining witness claims that she was intimidated and threatened and the peace of the household disturbed by defendants in their efforts to obtain possession of said stove. There is no claim of any intention to enter or of any entry upon real property by force for the purpose of obtaining or detaining possession thereof.
The defendants have been tried and convicted in the Oity Court of Buffalo of violating section 2034 of our Penal Law, which reads as follows: “A person guilty of using, or of procuring or assisting to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor.”
The statutes of England and of the various States of this Union bearing upon the subject of forcible entry and detainer have been the subject of much judicial discussion. As far as the civil statutes are concerned, it .appears that the peaceable possession of even a trespasser may not be entered upon forcibly, even by the owner of the land. However, it must be a case of actual possession and not mere occupancy. Furthermore, it is not a question of title, right of entry or right of possession. The object of all the statutes bearing on this subject is to preserve the public peace and to prevent persons from asserting their rights, real or supposed, to enter upon and take possession, or, under certain circumstances, to retain possession, of real property by force or violence. A mere trespass, not accompanied by *510force, violence or intimidation by menaces, gestures or threats to obtain the possession of real property, is insufficient to make out a forcible entry; and, as to forcible detainer, mere words are insufficient; personal violence must be shown.
Whatever the facts in the case involved may have been as to threats, menaces or physical interference with each other by the parties concerned is not material. A study of said section 2034, and of the various decisions of the courts bearing on forcible entry and detainer, has convinced me that the section applies to forcible entry on, and taking possession or keeping possession of, real property only, and not to trespass involving merely a taking or retaining possession of chattels.
It may be that these defendants could be successfully proceeded against under section 43 or section 720 of our Penal Law, or for assault in the third degree, or under some city ordinance ; but, as I read the law, they cannot be convicted under said section 2034.
Therefore, whatever the equities may be between these parties, and however reprehensible the conduct of any of them, these defendants have the right not to be convicted of a crime which they have not committed; and, therefore, the judgment of the court below must be reversed, and the fines remitted.
Judgment reversed.
NOTE ON FORCIBLE ENTRY AND DETAINER.
DEFINITIONS.
Violently taking or keeping possession of lands or tenements, by means of threats, force or arms, and. without authority of law. Bouvier Law Dictionary.
An entry made with violence, against the will of the lawful occupant, and without authority of law. Anderson Law Dictionary, 404.
An entry made with violence, against the will of the lawful occupant, one’s own, of a nature to be the subject of a personal occupation, made with such an array of force as to create terror in those who are present opposing. 2 Bishop Criminal Law, section 489.
*511An offense against the public peace which is committed by violently-taking or keeping possession of lands or tenements with menaces, force; and arms, and without authority of law. 4 Blackstone, 148.
The using, or the procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed bylaw. Penal Law, section 2034.
AT COMMON LAW.
Held to be an indictable offense. Commonwealth v. Shattuck, 4 Cush. 141.
Statutes construed as not abrogating the common law, but as merely-providing additional legislation upon the subject. State v. Morgan, 59 N. H. 322.
Where the entry is peaceable but unlawful the question is said to be in doubt. State v. Johnson, 18 N. Y. 324.
Where the entry is both peaceable and lawful, as where a person having a right to enter enters peaceably in the absence of the occupant, it is not indictable at common law to retain by force the possession thus acquired. People v. Fields, 1 Lansing, 222.
ELEMENTS.
An actual peaceable possession on the part of the prosecutor is all that is necessary to maintain the action. People v. Leonard, 11 Johns. 504.
To constitute a forcible entry there must be more force used than would; amount to a mere trespass. People v. Smith, 24 Barb. 16.
A peaceable entry, though unlawful, if no force or violence is used in taking or maintaining the same, is a mere trespass. People v. Smith, 24 Barb. 16.
And this is so even though the entry is against the consent of theoccupant. Temple v. State, 6 Baxter (Tenn.) 496.
The same circumstances of force, violence, or terror are essential to a. forcible detainer as to a forcible entry. People v. Rickert, 8 Cow. 226.
A retention of a wrongful possession peaceably acquired where no force, threats or violence is used to keep the owner out is a mere trespass. Commonwealth v. Dudley, 10 Mass. 403.
He who retains a possession wrongfully acquired, by keeping an unusual' number of persons on the premises, or an unusual array of weapons, or *512threatening to do some bodily injury to the former occupant or possessor in the event of his daring to return or attempt to return, is held guilty of a forcible detainer, though no actual attempt may be made to re-enter by the former possessor. People v. Rickert, 8 Cow. 226.
The members of a congregation who forcibly break into the church edifice after the trustees have in a regular meeting voted to close the church, commit a forcible entry thereby. People v. Runkle, 9 Johns. 147.
EVIDENCE.
Where prosecutor and defendant’s master each claim title to a certain building and latter’s employer directed him to make certain repairs, and in order to gain admission for that purpose he broke a padlock on the building, and later on attempting to enter building, pushing by prose-cutor, who stood in the doorway, he was charged under Penal Code with a forcible entry and detainer, and was subsequently discharged, and the court held that an action for false imprisonment would lie. McMorris v. Howell, 89 App. Div. 272.
.INDICTMENT.
Held sufficient if the offense is stated with such clearness as to allow the jury to readily understand its nature, and defendant to prepare his defense, and the court to give judgment according to the rights of the case. People v. Farrell, 5 Silv. Sup. 23.
The indictment must allege such an estate or interest in the complainant as to bring him within the provisions of the statute. People v. Nelson, 13 Johns. 340.
EVIDENCE.
As the title to the premises is not at issue and cannot be tried, evidence of title is inadmissible. People v. Rickert 8 Cow. 226.
Evidence of title in the defendant cannot be introduced to justify the force. People v. Leonard, 11 Johns. 504.
TRIAL.
A prosecution for forcible entry and detainer cannot be maintained or used as a means of trying title to the premises where the alleged force was committed. People v. Godfrey, 1 Hall, 240.
Where both forcible entry and forcible detainer are' charged in the same indictment, defendant may be convicted of the one and acquitted of the other. People v. Anthony, 4 Johns. 198.