Opinion
September 28, 1970
In an action to recover damages for trespass and other damage to real property, defendants appeal from a judgment of the Supreme Court, Westchester County, entered March 26, 1969 on a special verdict of a jury and the trial court's decision that treble damages be allowed to plaintiffs on one of the amounts awarded them by the jury. Judgment modified, on the law, by disallowing the inclusion of the $6,000 which was added to the principal award by reason of said trebling of damage and by reducing the amounts of principal, interest and total in the judgment accordingly. As so modified, judgment affirmed, without costs. The findings of fact are affirmed. The claim for treble damages under section 1433 of the former Penal Law must fall. The injuries to the trees fall squarely within subdivision 1 of section 1425 of the former Penal Law and, therefore, treble damages for such injuries were improper ( Hazak, Inc. v. Robertson Goetz Bldg. Co., 289 N.Y. 478). The granting of the motion to permit treble damages for injuries to the trees under section 861 Real Prop. Acts. of the Real Property Actions and Proceedings Law at the close of defendants' case was an improper exercise of discretion. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.