Upon the record in this case nothing more favorable to the appellant can be said than that a report by the referee, in his favor, might have been sustained, upon the ground that such finding would not have been entirely unsupported by evidence. On the other hand the report against him, and the finding that "the complaint, warrant and arrest of the plaintiff thereunder, were willful, malicious, illegal and without probable cause," stands upon testimony properly received, credible to the referee, and satisfactory to the General Term. It is sufficiently referred to in the opinions of the learned judges of that court, and our own examination of the case justifies, and enables us to concur in, that conclusion. It is said, however, by the learned counsel for the appellant that evidence offered or called for by the defendant was improperly excluded:
(1.) The plaintiff claimed to be in possession of the premises in question under a deed which had been put in evidence, and one Boomhower, a witness for plaintiff, being under cross-examination, was asked, "What was paid for that deed?" *Page 467 the defendant's counsel at the same time offering to show that there "was no consideration for it, and that it was a mere scheme or device to defeat the execution for the possession of the farm." The execution referred to recited a judgment of June, 1865, against one Caleb Nelson for the possession of the premises, and no other person. It was issued to the sheriff May 5, 1883. The plaintiff's title was under a deed from Mephibosheth Nelson and Martha Nelson to Hannah Nelson, of April 2, 1860, and from Hannah Nelson to Helen J. Wright, the plaintiff, in April, 1883. This is the deed referred to in the question. The grantee was in possession of the premises; she made no claim even under the judgment-debtor, and we see no ground upon which, in this action, the inquiry could be relevant or justifiable.
(2.) The defendant, while on the stand as a witness in his own behalf, was asked by his counsel: "Had there been occasions frequently before this occurrence, and in that section of the country, in the process of enforcing writs in what is commonly known as anti-rent proceedings, for resistance to be offered against the enforcement of such writs on the part of those in possession of the premises, including both women and men, under claim of some superior title to that which was to be enforced in the writ, and were you familiar with such facts and had you been present yourself when such resistance had been offered; and had such occurrences taken place within a brief period of the occurrence in question; and had such resistance been carried to the point of killing the officers in the execution of the writs?" And this being excluded, "offered to show all the facts embraced in the affirmative part of that question."
To each ruling there was an exception, and it is now relied upon. No reason is assigned in support of it, and none is perceived. The defendant went upon the plaintiff's premises with no process against her, and was informed that she had the title under Hannah Nelson, and, as the referee finds, "the defendant thereupon, in a violent and threatening manner, informed the plaintiff, while in her house and upon her premises, *Page 468 that he would throw her out of said house and premises, under said writ of possession on the next day; in reply to which the plaintiff informed the defendant that if he attempted to remove her under the writ of possession against Caleb Nelson, there would be trouble." Of what materiality was it that upon other occasions there had been resistance and trouble? As against the plaintiff the defendant had no writ, and as against that which he had and the assault which he threatened, she might make lawful resistance. The unfortunate state of affairs to which the question alludes seems wholly foreign from the defendant's case in this action. If he believed there was from this plaintiff danger of an assault, he must also have known that it could only happen upon his own instigation, and that unless he or his agent trespassed, both were safe from interference.
The referee finds: "That on learning that the plaintiff was lawfully in the possession of the premises, he knew, as matter of fact, and was bound to know as matter of law, that he could not remove the plaintiff therefrom under said writ or execution for possession against Caleb Nelson. That the only threat made by the plaintiff was that of resistance against the execution of the writ against Nelson, and from that threat there was no probable reason to apprehend a breach of the peace or a violation of law." There is no view of the evidence which requires any other conclusion, or which tends to show that the facts suggested by the question, if they existed, could have had any material or just operation upon the defendant's mind. As against the plaintiff he had, so far as the record shows, no right, and, neither for himself nor the sheriff in whose favor the arrest appears to have been made, any cause for apprehension.
We think the judgment should be affirmed.
All concur, except PECKHAM, J., not sitting
Judgment affirmed. *Page 469