Opinion
February 13, 1962
In an action to recover damages and for an injunction to restrain the defendants from depositing water, dirt, silt and stones on plaintiffs' land, as a consequence of the upgrading of defendants' adjoining land and of the maintenance of faulty gutters and leaders upon a house erected on defendants' land, the defendants appeal from a judgment of the Supreme Court, Westchester County, in favor of plaintiffs, rendered May 13, 1960 upon the decision of the court after a nonjury trial. The judgment awarded treble damages in the sum of $600 against all defendants, based on the finding that plaintiffs' actual damage was $200 and on the finding that defendants' acts were a willful trespass (for which plaintiffs are entitled to treble damages under subdivision 3 of section 1433 of the Penal Law). The judgment also decreed that the defendants be restrained from any future acts of commission or omission which may result in the casting of dirt, silt and stones upon the plaintiffs' property. Judgment modified on the law and the facts by striking out the first and second decretal paragraphs which direct recovery by plaintiffs from each defendant of $600 treble damages; and by substituting therefor: (1) a paragraph directing recovery by plaintiffs from each defendant of the actual damage of $200 together with the costs of the action; and (2) a paragraph that plaintiffs are not entitled to treble damages. As so modified, the judgment is affirmed, with costs to plaintiffs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. The record justified an award of $200 for the actual damage to the plaintiffs' land. Under all the circumstances here, the trial court was also justified in not apportioning such damage among the several defendants. While they may not have acted in concert, their several acts were merely cumulative; the conduct of each was a sufficient concurring cause for all the resulting damage to plaintiffs' land. It was error, however, to award treble damages. The statute invoked by plaintiffs for such relief (Penal Law, § 1433, subd. 3) requires proof of both unlawful and willful injury to real property ( People v. Kane, 131 N.Y. 111, 114). Acts which do not constitute a crime under the statute do not give rise to recovery of treble damages ( Polychrome Corp. v. Lithotech Corp., 4 A.D.2d 968). While trespass cannotes, inter alia, an intentional injury by way of an unauthorized entry upon property of another, "It is not necessary that one in making such an entry should have any unlawful intent" ( Heller v. New York, N.H. H.R.R. Co., 265 F. 192, 194). Here, while a willful trespass was properly found, there was no proof or finding that defendants committed such trespass with any unlawful or criminal intent. In the absence of such proof, the trespass does not come within the purview of the statute authorizing treble damages ( Hewitt v. Newburger, 141 N.Y. 538, 542). Beldock, P.J., Hill, Rabin and Hopkins, JJ., concur; Ughetta, J., not voting.