Marchand v. Haber

16 Misc. 322, 37 N.Y.S. 952, 73 N.Y. St. Rep. 571

• Court: New York Supreme Court
• Decided: March 15, 1896
• Status: Published

Opinion

McAdam, J.

The. practice is for the jury to find single damaees, and for the court, under the statute, to treble, them in a proper case. Newcomb v. Butterfield, 8 Johns. 264; King v. Havens, 25 Wend. 420; Warren v. Doolittle, 5 Cow. 678; Anon., 4 Wend. 216; Du Bois v. Beaver, 25 N. Y. 123. The evident object of. the provision as to treble damaged (Code, § 1669) was to prevent wanton invasion of rights of pYoperty by awarding them in lieu of exemplary damages. Field on Dam., § 848. But the statute is to be interpreted as a penal one, and the facts dis-' closed do not bring the case .within its spirit or intent. The proofs offered neither called for exemplary damages at the trial nor for treble damages in lieu thereof now. the plaintiff had no estate in the premises; he merely had the bare possession, and though ejected on void process, such ejectment was unlawful solely by reason of a defect in the petition filed in initiating the summary proceeding to remove him. He was not dispossessed in a forcible manner inhibited by the statute against forcible entry and detainer, and is not, therefore, entitled to'the treble damages claimed. Willard v. Warren, 17 Wend. 262; People v. Smith, 24 Barb. 18; Wood v. Phillips, 43 N. Y. 158; People v. Field, 52 Barb. 214; Labro v. Campbell, 56 N. Y. Super. Ct. 70; S. C., 17 N. Y. St. Repr. 749. There was no wanton violation of any right of property. In Compton v. The Chelsea, 139 N. Y. 538, the plaintiff claimed title, and the action was in ejectment for restoration to the possession from which he had been actually disseized vi et armis, without any attempt by the trespasser to resort to legal proceedings. That case bears no analogy to this. See also Eten v. Luyster, 60 N. Y. 253.

Motion denied.