(73 Hun, 540.)
CONWAY v. CARPENTER.
(Supreme Court, General Term, Second Department.
December 1, 1893.)
Assault and Battery—Evidence.
In an action for assault and battery, it was averred that plaintiff was minister of the M. church, which leased its church building from the W. church. The lease provided that the lessor might re-enter If any serious disagreement arose in the M. church. While plaintiff was preaching in the church, he was ejected by defendant, a trustee of the lessor, which was the assault complained of. Defendant justified under a resolution which recited the dosing of the M. church on the preceding Sunday, and provided for a return of the keys to one P., an officer of the M. church. There was no proof of the termination of the lease, and no keys were shown to have been in possession of the lessor or of P. Held!, that it was error to dismiss the complaint. Dykman, J., dissenting.
Appeal from circuit court, Westchester county.
Action by Alexander M. Conway against Edward O. Carpenter for assault and battery. From a judgment dismissing the complaint, plaintiff appeals.
Reversed.
*256Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
William Riley, for appellant.
Rudd, Hunt & Wilder, (James M. Hunt, of counsel,) for respondent.
BARNARD, P. J.
The plaintiff is a minister of the Gospel. On the 6th of March, 1892, he was attached, as minister, to the Baptist Church, of Yonkers. The church edifice did not belong to-the Messiah Baptist Church, but was held under a lease from the owner, the Warburton Avenue Baptist Church, at a nominal rent. There was a clause in this lease that, if there should arise any serious disagreement in the Messiah congregation, the landlord might forthwith re-enter. The plaintiff on the 6th of March, 1892, on Sunday, went to the Messiah church to preach. One worshiper entered with the pastor. When he entered the church, or soon after, some one locked the door on the outside. The pastor began to preach to his small congregation, and suddenly, soon after he commenced, the door was unlocked; and the pastor was forcibly removed from the pulpit and church, and put out of the edifice, by' the direction of the defendant. He is a trustee of the lessor church. The justification for the act is contained in a resolution passed on March 5, 1892, as follows:
“In closing the Messiah church on Sunday last, on motion, it was resolved that the keys be returned to Mr. Pollard, and that he have permission to open the house for religious purposes only, and in case of any disturbance he return the keys to Mr. E. O. Carpenter.”
Mr. Pollard was an officer in the Messiah church, and he aided in the force used on the occasion. There was no proof of the surrender of the lease, or of its termination, except by the resolution. There were no keys shown to have been in possession of the Warburton church or of Mr. Pollard, and, if such fact existed, no justification is thereby made for this violent assault on a pastor who had no notice of the fact that the Warburton church had taken possession of the house of worship. The judgment should be reversed, and a new trial granted; costs to abide event.
DYKMAN, J.,
(dissenting.) This action was commenced for the recovery of damages for assault and battery by the defendant upon the plaintiff. -The complaint of the plaintiff was dismissed at the circuit, and he has appealed from the judgment. The plaintiff is a minister of the Gospel and had been the pastor of the Messiah Baptist Church, in the city of Yonkers, in Westchester county; but he had resigned his chargé in December, 1891, and his resignation was accepted. On the 6th day of March, 1892, however, the plaintiff entered the meetinghouse, and commenced to preach a sermon from the pulpit therein. The defendant was a member of the Warburton Avenue Baptist Church, the owner of the building, and received authority from the trustees of that church to protect the building, and prevent the plaintiff from trespassing upon the premises. In pursuance of such authority, he went to the building with a police*257man, and found the plaintiff there, and caused his removal; and that is the assault of which the plaintiff complains. Under this state of facts, the plaintiff obviously has. no cause of action. He was a trespasser, and intruded himself into the church building without authority or right, and the defendant was authorized by its owner to remove him. In doing so, no unnecessary force was-exerted, and the defendant acted within his authority and rights. The record discloses no error, and the judgment should be affirmed,, with costs.