Von Hoffman v. Kendall — 44 N.Y. St. Rep. 484

Majority

p. 484

Athenais Von Hoffman, Resp’t, v. George H. Kendall, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Trespass—Pleading—Treble damages.

A complaint alleging that defendant unlawfully and wilfully entered upon plaintiff’s land and unlawfully and wilfully cut down trees growing-thereon, to plaintiff’s damage, and which claims treble damages under § 654 of the Penal Code, states facts sufficient to constitute a cause of' action; as, if treble damages were improperly claimed, plaintiff would be-entitled to single" damages if the facts proven showed it.

& Same—Acquittal oe criminal charge no defense.

An acquittal upon criminal charge under Penal Code, § 654, is no defense to such an action.

p. 485

Appeal from judgment sustaining demurrer to the second defense set up by defendant’s answer.

The action was brought for wilfully and unlawfully entering upon plaintiff’s lands at Gryines Hill, Eichmond county, and cutting down twelve growing trees, to plaintiff’s damage $500, and the complaint demanded judgment for treble damages. -

The answer, after denying every allegation of the complaint, sets up for a further answer, and as a bar to the action, the adjudication by a justice of the peace upon a complaint m a criminal action for the same alleged injury, whereby the defendant was alleged to have been acquitted of the offense charged'.’

Plaintiff demurred to. that defense on the ground that it was insufficient in law upon the face thereof.

William B. Wilder and Sidney F. Bawson, for app’lt; George J„ Greenfield (James W. Monk, of counsel), for resp’t.

The facts set forth in the complaint make a good cause of action for trespass upon the lands of plaintiff. The averment is that the defendant unlawfully and wilfully entered upon the lands of the plaintiff and unlawfully and wilfully cut down trees growing upon the land, thereby lessening the land $500.

Even if the demand for judgment improperly claimed treble damages the plaintiff would, be entitled to recover single damages, if the facts proven on the trial were sufficient to call for single damages and no more. Emery v. Pease, 20 N. Y., 62 .

The statute which gave the right to treble damages expressly provided that under certain proof only single damages should be recovered. 1 Revised Laws, 525, § 29; 2 R. S., 2d ed., 261, §§ 1 and 2; Code Civil Procedure, §§ 1667, 1668.

It may be questioned whether § 654, Penal Code, applies to the case.

Section 640 makes the offense and fixes the punishment; and § 654 applies to offenses where punishment is not fixed by statute. The discussion of the question is wholly unnecessary. Wright v. Wright, 54 N. Y., 437 : Williams v. Slote, 70 id., 601; Wetmore v. Porter, 92 id., 76.

The acquittal upon the criminal charge is neither a defense to the single or treble damages. The people were the party, and the verdict only bound the People as final.'

It follows that even if the criminal prosecution under § 654, Penal Code, had failed, the right to damages remained. The demurrer of plaintiff to the second defense alleging such an acquittal was properly sustained.

Judgment sustaining demurrer to part of answer affirmed, with costs.

Dykman and Pratt, JJ., concur.