Randall v. Alburtis

From all the evidence in the case, it is apparent that the plaintiff and defendant, in the occupation of the store, had a joint occupation rather than a divided one. The testimony shows that both of them wore at different times in different parts of the premises, according to their convenience.

The fact, then, of plaintiff’s being in the front part of the *287store (wbiob was tbe part nominally rented to tbe defendant) was not sufficient to show an eviction. He did not exclude, or attempt to exclude tbe defendant, but merely claimed a right witb him in tbe store. At best, be was only a trespasser, and where that is tbe case, and a remedy exists for tbe trespass, the-law does not favor calling it an eviction.-

But although by itself such occupation jointly witb tbe defendant is not sufficient proof of an eviction, yet taken in connection witb tbe exclusion .of the, defendant’s tenant, and tbe prevention of bis occupation, I think, was enough to warrant tbe justice in finding that tbe plaintiff had resumed tbe possession ami determined to exclude tbe defendant’s tenant from the premises. Such an interference, under the cases, is an eviction. See Burn v. Phelps, 1 Starkie, N. P. R. 94, and Lawrence v. French, 25 Wend. 443.

There is a distinction between an interference by tbe landlord who sues for the rent, and by a landlord who interferes witb a sub-tenant, owing rent to an intermediate landlord. In the latter case it is not an eviction. Lawrence v. French.

Tbe plaintiff had no right to dictate, under tbe original letting to bis tenant, what business should be pursued therein. It formed no part of the agreement, and, without such reservation, the tenant bad a right to carry on what business he thought proper.

At any rate, the question was one for tbe court below, and tbe finding is conclusive.

Judgment affirmed.