Opinion
January, 1901.
Wm. Klingenstein, for appellant.
La Fetra Glaze (Stillman F. Kneeland, of counsel), for respondent.
The defendant averred, in his petition in the dispossession proceeding, that he was the owner and landlord of the premises at the time, and he is now estopped from denying that fact. That proceeding was instituted by him, and the defendant illegally and in a forcible manner dispossessed the plaintiff under the warrant issued therein. The warrant, so far as this plaintiff is concerned, was subsequently vacated. That the defendant procured the services of the marshal in executing the warrant cannot be questioned. The defendant's witness Comisky testified: "I am one of the marshals of the city of New York and was such marshal on the 8th day of March, 1899. I know the plaintiff, Hong Sing, and remember dispossessing the plaintiff from the premises No. 220 Madison street pursuant to a warrant, of which plaintiff's exhibit 2 is a copy, issued to me by the clerk of the Municipal Court, fifth district, and which was given to me by Mr. Katz, the attorney acting for the petitioner" (this defendant). Although the defendant became a witness in his own behalf, he did not question the testimony of this witness. The court correctly ruled that the plaintiff was entitled to recover his loss of profits during the remainder of the term under the lease. Snow v. Pulitzer, 141 N.Y. 263; Schile v. Brokhahus, 80 id. 614.
In charging the jury, the court said: "Therefore, the question comes down to this: `What is the plaintiff's damage?' Under the section of the Code referred to, which is in its nature penal, it says that he shall be entitled to treble damages. * * * The damage is the difference between the amount of the rent agreed to be paid by the lease, and the real value of the use and enjoyment of the premises during the term that the lease ran. You must determine what that amount is to be from the evidence in the case only. Then, under the statute, you treble that amount and bring in your verdict for the full amount." The jury returned a verdict for $1,875, and it is apparent, from the evidence and the plaintiff's allegations in his complaint of the value of the remainder of the term, and of his damage by reason of being deprived thereof, that the jury have awarded treble the damages they found plaintiff had sustained. It was error to instruct the jury that it was their duty, under the statute, to bring in a verdict for treble damages. The practice is for the jury to find single damages and for the court, under the statute, to treble them in a proper case. Marchand v. Haber, 16 Misc. 322.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff, within ten days, stipulates to reduce the judgment to $625, damages and costs, in which event the judgment will be affirmed, without costs.
Present: FITZSIMONS, Ch. J., HASCALL and O'DWYER, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment to $625, in which event judgment affirmed, without costs.