Alloway v. Hickok

215 A.D. 86, 213 N.Y.S. 192, 1925 N.Y. App. Div. LEXIS 5369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1925
• Status: Published

Opinion

Per Curiam.

The action was to recover damages for unlawful and willful injury to plaintiff’s personal property. The complaint demanded judgment for treble damages pursuant to Penal Law, section 1433, subdivision 3. The evidence clearly brought the case within the provisions of the statute cited. The learned trial justice left it to the jury to assess the actual damage sustained by the plaintiff. This was the proper procedure. (Civ. Prac. Act, § 435.) The jury assessed such actual damage at $600. The Civil Practice Act directs that judgment shall be entered for the increased damage given by the Penal Law. But the learned justice denied plaintiff’s application that judgment be directed for the treble damages. We think that plaintiff had a right under the statute to enter judgment for treble damages. (Layton v. McConnell, 61 App. Div. 447.)

The order denying plaintiff’s motion to treble damages found by the jury should be reversed upon the law and the facts and the motion granted. The judgment appealed from should be modified so as to award treble damages to the plaintiff and as so modified said judgment should be affirmed, with costs to appellant.

Kelly, P. J., Rich, Jaycox, Manning and Young, JJ., concur.

Order denying plaintiff’s motion to treble damages found by the jury, reversed upon the law and the facts, and motion granted. The judgment appealed from is modified so as to award treble damages to the plaintiff, and as so modified affirmed, with costs to appellant.