
    Theodore A. Page, Respondent, v. Herkimer Lumber Company and Others, Appellants.
    ' Fourth Department,
    November, 1905.
    Jury trial — when the defendant not entitled to jury trial in equitable action to restrain cutting of timber with incidental damage — treble damages not authorized in such action.
    A complaint which alleges that- the defendants have wrongfully trespassed -on plaintiffs premises by cutting timber thereon and are continuing and. threaten to continue to do so to the plaintiffs irreparable damage, followed by a prayer for an injunction with damages for the cutting already done, sets out only an action in equity and defendants have no right to a jury trial, although the defendants: are alleged to be liable for treble damages under sections 166*7 and 1668 of the Code-of Civil Procedure.
    Such . allegations as to damage must be construed as erroneous conclusions of law, as said sections of the Code authorizing treble damage relate only to v the statutory' action and do not fix the measure of damages in- an equitable action for an injunction with incidental damage. '
    Appeal by the defendants, the Herkimer Lumber Company and others, from an order of the Supreme Court, made at the Herkimer. Special Term and entered in the office of the clefk of the county of Herkimer on .the 19th day of September, 1905, denying the defendants’ motion for a jury trial Of certain issues..
    
      Charles E. Snyder, for the appellants,
    
      Spencer Brownell and Udelle Bartlett, for the respondent.
   Hiscock, J.:

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 complaint fairly and plainly alleges that the defendants have wrong, fully trespassed upon the plaintiff’s rights by unlawfully, cutting certain timber upon his premises, and that at the present time they are continuing and in the future threaten to continue such acts of trespass to his irreparable damage. These allegations are followed by the general prayer for relief appropriate to an action in equity, that defendants be restrained from committing their unlawful acts and that plaintiff recover certain damages foythose already committed. All of these allegations are of a familiar.nature as appropriate to an equitable action.

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 the allegations'with reference to treble damages are superfluous and not applicable to the measurement of any damages which may be recovered herein, that We hold that the-order denying defendant’s application for a jury trial was. properly made and may be sustained.

All concurred.

Order affirmed, without costs to either party.  