96 N.Y.S. 272 | N.Y. App. Div. | 1905
Defendants, upon their appeal, insist that the complaint in this action sets fqrth two independent complete-causes of action against them for treble damages under sectiotis-' 1667 and 1668 of the Code of Civil Procedure, for cutting down and carrying off trees and timber, and that they have an absolute constitutional right to have such issues tried before a jury, and of which right they cannot be deprived because plaintiff has combined in the same complaint said •causes of action with an alleged equitable cause of action.
If we are compelled to construe plaintiff’s complaint as setting forth the statutory causes of action mentioned, we should follow' defendants’ contention and hold with them that they were entitled' to have the same tried before a jury and that the order denying such rights Was erroneous.
, A consideration of the entire complaint, however, leads us to the conclusion that it should not be construed, as urged by defendants, as setting forth such causes of action, but that in view of all óf its. allegations and of its entire scope and purport it may and should be construed' as a Complaint in. equity seeking to restrain the commission of future acts of trespass and incidentally asking further relief in the way of damages for those .already committed, some Unnecessary allegations and erroneous conclusions of law being inserted which have led to the opposing views herein.
Except for the allegations hereinafter specifically referred to, the
In addition to them, however,'and causing jail-of the trouble herein, plaintiff has thrown in some other allegations following those of the trepasses alleged already to have been committed by defendants, to the effect that thereby, and by reason of such acts of trespass, the defendants are liable under sections 1667 and 1668 of the Code of Civil Procedure to pay treble the amount of actual damages sustained by the plaintiff, and his prayer for damages incidental to the equitable relief sought herein is made up upon such theory of treble damages.
An action for treble damages for acts of the character alleged is an independent and complete and special cause of action under the sections of the Code referred to. It seems very clear to us that the provisions of those sections relate to and provide for that particular action and that they cannot, by any possibility, be regarded as fixing the manner in which the damages for such acts of trespass might be measured in an equitable action for an injunction and incidental relief by way of damages. Apparently, however; the pleader in this action entertained a different theory and believed that' in an equity action those sections of the Code might be utilized as giving a standard by which to measure and recover damages for the unlawful acts herein specified, and as we study the entire com.plaint, we think that he was misled by such erroneous conception of the law into throwing into his complaint these allegations with reference to the sections of the Code named, as justifying a certain measure of damages in his equitable action, rather than for' the purpose of setting forth independent and statutory causes of action for treble damages.
It is upon this theory that the action is an equitable one and that
All concurred.
Order affirmed, without costs to either party.