Memorandum. Cases involving judicial proceedings for forfeiture of penalties were tried by jury before the adoption of the 1846 Constitution (Colon v. Lisk, 13 App. Div. 195, affd. 153 N. Y. 188; see, also, People ex rel. Lemon v. Elmore, 256 N. Y. 489, 493 ; 4 Lincoln, Constitutional History of New York, p. 50; 44 N. Y. Jur., Penalties and Forfeitures, §§ 7, 16). Therefore, section 2 of article I of the State Constitution guarantees the right to a jury trial in this forfeiture proceeding (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 244; Wynehamer v. People, 13 N. Y. 378, 426). Lawton v. Steele (119 N. Y. 226, affd. 152 U. S. 133), permitting the summary destruction of property of small value in order to abate a nuisance, is not applicable. The instant statute does not prohibit trial by jury; indeed it does not detail any of the proceedings to be followed. Hence it was incumbent on the court to provide the appropriate
Chief Judge Fuld and Judges Scileppi, Bergan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.
Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs.