#### Gerhard Domhoff, Appellant, *v.*Paul Stier, Incorporated, Respondent.

Second Department,

May 9, 1913.

Trespass — destruction of crops and other personal property — evidence — party — who may maintain action.

In an action by a tenant or sub-tenant for trespass upon farm property, it appeared that the farm was under actual cultivation, surrounded by a fence, and that the defendant by its agents and employees broke down the fence, entered upon the premises and destroyed plaintiff’s crops and other personal property. Evidence examined, and *held,*to establish a *prima facie*case for the plaintiff, that his original entry was lawful and that his possession at the time of the alleged trespass was actual and peaceable.

Trespass being an injury to possession, action therefor may be maintained by any one in actual possession of land, and proof of title is unnecessary.

Appeal by the plaintiff, Gerhard Domhoff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 26th day of December, 1911, upon the dismissal of the complaint by *205direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 19th day of January, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

*Edmund O. Viemeister,*for the appellant.

*R. W. Kellogg,*for the respondent.

Burr, J.:

Plaintiff appeals from a judgment of nonsuit in an action for trespass upon real property. The evidence upon the part of plaintiff was not presented in the clearest manner possible, but from it we think that the following facts may be adduced:

The premises in question, consisting of about seven acres, and known as the Eing farm, after the death of Frederick Eing were leased by his executors, by virtue of power and authority in his will, to George Bunneke for a term to expire July 1, 1901, at a rent of $600 per annum, payable in monthly installments. Bunneke entered into possession, and sublet a portion of the farm to John Beckman. Before the expiration of the written lease Bunneke sold the unexpired term thereof, with certain personal property on the farm, to plaintiff for $3,500, and he attorned to the owners and was accepted as a tenant. After the expiration of the written lease the parties continued in possession under an oral letting, the terms of which are not entirely clear, except that the rent was reduced to $40 a month. During her lifetime the rent was paid to Maria S. Eing, the widow of the testator above named. She died January 6, 1908. After that and down to August 1,1909, plaintiff continued in the actual occupation and possession of a portion of said premises, paying rent therefor. Although originally Beckman entered as a sub-tenant, it is not entirely clear during the latter portion of the time whether plaintiff was the tenant of the entire farm and Beckman his sub-tenant, or whether the relations were reversed. The receipts offered in evidence, beginning with August 1,1908, run to John Beckman, and are for the rent reserved for the entire farm, but plaintiff testified that as matter of convenience he gave Beckman each *206month his proportionate part of the rent, amounting to $16.67, to he paid by Beckman, and it was understood that he was. to add to this the amount of his own rent and pay over the same to the owners of the property. The receipts for the latter portion of the time, and after the death of Mrs. Ring, were signed by Frederick Brommer as agent for the heirs of the estate of Frederick Ring for a considerable period. Sometime after Mrs. Ring’s death the heirs at law of Frederick Ring formed a corporation known as the Ridgewood-Queens Realty Company. From May 8, 1909, to July 2, 1909, at which time the rent was paid up to August first, the receipts were signed by Frederick Brommer, president of the Ridgewood-Queens Realty Company. Each of these receipts contained a statement that the renting was for one month only. In April, 1909, the realty company entered into a contract with defendant, also a corporation, to convey to it said premises, and on September 30, 1909, the contract was executed by the delivery of a full covenant warranty deed. Beckman removed from that portion of the farm which he actually occupied August 4, 1909,. but plaintiff continued in peaceable possession at least of that portion of the farm previously actually occupied by him, if not of the whole thereof, down to the latter part of October or the early part of November in that year, and was tilling the soil and raising crops thereon, and had upon it certain personal property. No rent was paid after August 1, 1909. Plaintiff testified that no one came after it, and he did not know to whom to pay it. There is evidence that the farm was not only under actual cultivation but was surrounded by a fence, and that at or about the date named defendant, by its agents and employees, broke down the fence, entered upon the premises, destroyed plaintiff’s crop and other personal property, and when requested to desist refused to do so.

We think that plaintiff made out a *prima facie*case. His original entry was a lawful one and his possession down to the time when the entry was made by defendant was actual and peaceable.

Trespass is an injury to possession and action therefor may be maintained by any one in actual possession of land *(Holmes*v. *Seely,*19 Wend. 509; *Van Brunt*v. *Schenck,*11 *207Johns. 377), and title is unnecessary. (38 Cyc. 1004; *Oglesby*v. *Stodghill,*23 Ga. 590; *Price*v. *Brown,*101 N. Y. 669, 670.) Whether plaintiff was a tenant or a sub-tenant; whether he was liable to he dispossessed for holding over after expiration of his term or for failure to pay rent, he was in actual possession of at least a portion of the farm, and defendant had no right to regain possession of such premises by force and violence. *(Bristor*v. *Burr,*120 N. Y. 427; *Michaels*v. *Fishel,*169 id. 381, 389; *Norton*v. *Arvernam Co.,*14 App. Div. 581.)

The judgment and the order denying a motion for a new trial must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Carr and Rich, JJ.,-concurred.

Judgment and order reversed and new trial granted, costs to abide the event.