dissent">McLaughlin, J. (dissenting):

The plaintiffs were not occupying the store as servants or as licensees of Spielmann & Co.; on the contrary, they were in actual physical possession under a contract with Spielmann & Co., and had just as much right to such possession as though a formal lease had been made for a specified term. Being rightfully in possession under the contract, the defendants could not take the law. into their own hands and by the exercise of physical force regain possession. It is of no importance, so far as the question here presented is concerned, what the parties’ legal rights were under the contract. The statute provides that if a person is put out of the possession of real property in a forcible manner he is entitled to recover treble damages in an action against the wrongdoer. (Code Civ. Proc. § 1669.)

The purpose of this statute is to protect the actual possession whether right or wrong, and present parties resorting to physical force to obtain possession instead of obtaining it in a legal way, that is, the method provided by law. (Iron Mountain & Helena Railroad v. Johnson, 119 U. S. 608.) In an action of this character it is unnecessary for the plaintiff to prove his title or right to possession. ( Waterbury v. Deckelmann, 50 App. Div. 434.) All that he has to prove to maintain the action is that he was in peaceable possession and was forcibly ejected. (Compton v. "The Chelsea'' 139 N. Y. 538.) This is the only question which is involved and a judgment in favor of the plaintiff is not a bar to an action in ejectment. (Riverside Co. v. Townshend, 120 Ill. 9.)

For these reasons I am unable to concur in the decision about to be made by a majority of the court affirming the judgment. I am *572of the opinion- that the court erred in dismissing the complaint, and for that reason the judgment should be reversed and anew trial ordered, with costs to appellants to abide event.

Ingraham, J., concurred.

Judgment affirmed, with costs.

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