This is a motion to dismiss an indictment charging the defendants with conspiracy, in violation of subdivision 5, section 580 of the Penal Law. The defendants having been allowed to inspect the minutes of the grand jury, contend that there is no legal evidence to sustain the indictment.
It appears that for four years under lease granted by the defendants Zittel, the complainant had occupied an .apartment of ten rooms on the fourth floor of the apartment house, No. 838, West End avenue, in the County of New York. His lease expired September 30th, 1919. In May of that year he notified the defendants Zittel that he did not intend to renew the lease. The defendant Freeze is the superintendent of the said building. About June first defendant Katz leased the apartment for a term beginning October 1, 1919. On June fifth, the complainant closed his apartment and with his family consisting of his wife and five children, went to the country.. About the third of September he removed some of his belongings from 838 West End avenue and on September tenth he removed most of his furniture to another apartment he had hired, leaving at the West End avenue rooms a parlor set of furniture in the parlor, some clothes in the closets, linen in the linen closet and a lot of children’s toys and other things in all about a van load. These articles were all removed by the complainant on September twenty-seventh to his new apartment. None of this property was lost or in any way damaged.
When defendant Katz leased the apartment on June first, the defendant Zittel agreed to make extensive repairs, the defendant Katz consenting to pay $500 as his share of the costs. In September the defendant Katz urged the Zittels to have this work done so that the apartment might be ready for occupancy
The Zittels yielded to his importunities, and directed the defendant Freeze to proceed with the repairs. Accordingly, Freeze gave the order and on September thirteenth the painters began their work. On the afternoon of the fifteenth, complainant’s wife went to the apartment and found the painters at work; they did not leave when requested by her, and the defendant Freeze refused to remove them. She went to a police station, where the lieutenant in charge properly refused to send a policeman to the premises. She then went to the office of the Zittels and demanded that the workmen be removed, and be kept out of her apartment. She returned to the apartment on the morning of the sixteenth and found the workmen in the rooms. Freeze again refused to order them to leave. On the seventeenth, the complainant went to the house and requested the defendant Freeze to remove the paint pots and other things from the apartment and to keep the men out. Freeze promised to do so. On the eighteenth, complainant’s wife again visited the apartment and found five or six workmen there. The parlor furniture had been removed to another room, and part of the flooring had been taken up. She called up her attorney and on his advice procured a summons for Freeze to appear before a magistrate. She returned with the summons, but Hr. Freeze and the men refused to leave. She then went to the police station; but the lieutenant again refused to send an officer to the apartment. She returned on the nineteenth, and
I have stated the facts fully to clearly demonstrate that the learned magistrate committed no error in deciding that the defendants were not guilty of unlawful entry, and that there had been neither a forcible entry into the premises nor a forcible detainer thereof. The learned district attorney evidently is of the same opinion, as he has not charged the defendants with
If the complainant sustained damage by reason of the. defendants’ acts, his remedy must be sought in the civil courts. Not every violation of legal right is a crime. Furthermore, it has been held that subdivision 5 of section 580 of the Penal Law does not apply to real estate. (People v. New York & Manhattan Beach R. Co., 84 N. Y. 569.) This case was cited by Mr. Justice Q-reenbaum on granting a certificate of reasonable doubt to defendants who had been convicted of conspiracy in the Court of Special Sessions on the charge that they had instigated a “ rent-strike.” (People v. Weser, N. Y. L. J., December 3, 1919.)
The learned district attorney maintains that the certificate of the learned justice was merely the expression of a doubt as to the legality of a conviction of persons who were in prison, and that it should not receive the weight of a well-considered opinion. On the contrary, I regard the ruling of the learned justice, who is now a member of the Appellate Division, as a correct statement of the law defined in the earlier case.
The learned district attorney vigorously opposes this motion, and as the issue was deemed of great importance to the community in view of the housing conditions at that time, and as the defendants were on bail, I deemed it advisable to await the decision of the Appellate Division. But that appeal has not been heard; new laws have been enacted, and this case has
Bail discharged and indictment dismissed as to all the defendants.
Indictment dismissed.