
    Samuel P. Layton and Joseph R. Davenport, Respondents, v. Lizzie McConnell, Appellant, Impleaded with James H. McConnell.
    
      Defeat in a summons waived by the service of am, answer—treble damages are recoverable in a Jmtice’s Court — indorsement on the summons, when unnecessary— judgment, in an action against a husband and wife, recovered against the wife only.
    
    The service of an answer is a waiver of any irregularity in the service or contents of a summons.
    Section 1184 of the Code of Civil Procedure, providing that “ Where double, treble, or other increased damages are given by statute, single damages only are to be found by the jury, except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly, "is, by section 2868 of that Code, rendered applicable to an action brought in a Justice’s Court, under section 654 of the Penal Code, to recover treble damages for an injury to property, notwithstanding the fact that the latter section is included within a chapter which, for the purposes of the act, as originally adopted, was limited to certain courts other than Justices’ Courts.
    Section 1897 of the Code of Civil Procedure, providing, “ In an action to recover a penalty or forfeiture, given by a statute, if a copy of- the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered,” relates to actions brought primarily for the recovery of penalties and forfeitures prescribed by statutes and not to actions for damages in which penalties are only incidental to the recovery and depend upon the verdict of a jury and the operation of law. An action for treble damages, under section 654 of the Penal Code, falls within the latter category.
    The fact that the defendants in such an action are husband and wife and that the evidence is insufficient to charge the husband, does not deprive the plaintiffs of the right to recover treble damages from the wife where no question, affected in its decision by the relation of husband and wife; is involved in the controversy.
    Appeal by the defendant, Lizzie McConnell, from a judgment of the County Court of Orange county in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 30th day of April, 1900, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 30th day of April, 1900, affirming said judgment of said justice of the peace.
    
      Henry Bacon [,Joseph Merritt with him on the brief], for the appellant.
    
      M. N. Heme, for the respondents.
   Woodward, J.:

This action was brought before a justice of the peace of the town of Warwick, Orange county, to, recover damages for injury to property under the provisions of section 654 of the Penal Code, which provides, in addition to the punishment prescribed, that the defendant is “liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property.” A summons, such as is customary in a civil action,- was duly served upon the defendants, who appeared in person on the return day. The plaintiffs put in a written complaint, charging the defendants jointly with entering upon lands of plaintiffs, on which the latter had a growing crop of corn, and without leave of the plaintiffs, the owners thereof, with unlawfully and willfully tramping down, pulling up, destroying and injuring a large part of said field of corn, whereby said plaintiffs lost said corn, and the defendants thereby by force of Section 654 of the Penal Code forfeited and became liable to pay the plaintiffs treble the amount of the damages thereby occasioned, and plaintiffs by reason of said acts, were damaged in the sum of fifteen dollars.” The complaint then demands judgment for fifteen dollars, as well as for the treble' damages. The defendants put in a written answer,' making, first, a general denial; second, that the acts complained of were done by leave of the plaintiffs; and, third, that in and by the lease of said premises to the plaintiffs from the defendants, the said defendants reserved the right and privilege at any time to go upon the premises leased to gather the apples and all other fruit and berries grown upon said premises. After putting in this answer, which under all the authorities is a waiver of any irregularity in the service or contents of the summons (Cowenhoven v. Ball, 118 N. Y. 231, 234), the defendants demanded a nonsuit, and the motion was denied. There was no objection or exception to this ruling of the court, and the case was adjourned from the return day, July 25, 1899, to August 8, 1899, the defendants first having called for a jury. Subpoenas were issued, and upon the adjourned day both parties'appeared in person and by attorney. The record does not show that any objection was raised to proceeding with the trial, and witnesses in behalf of both parties were called and examined without objection or exception by either. After the evidence was closed counsel for plaintiffs and defendants summed up to the jury, and without any motion, objection or exception of any kind, the case was submitted, resulting in the jury finding a verdict against Mrs. McConnell alone for six dollars, and for malicious mischief. The court thereupon, in compliance with the provisions of section 654 of the Penal Code, directed the entry of judgment for treble damages, with costs, making in the aggregate twenty-nine dollars and thirty-five cents. The evidence did not, in the judgment of the jury, require any finding against James H; McConnell, and he was acquitted.

The case was appealed to the County Court of Orange county, three questions being urged : First, that the verdict of the jury was against the weight of evidence; second, that the action being for a penalty and the complaint not having been served with the summons, and the summons not referring to the statute, the court had no jurisdiction; and, third, that the justice had no power to treble the damages found by the jury. The same questions are raised upon this appeal, with the additional one .that the separate verdict against the wife was improper.

Assuming that it is the duty of this court to examine and pass upon questions not raised upon the trial, or even upon the appeal to the County Court, we will consider them in the order following:

We have examined the evidence as set forth in the record; and there can he no question that it is.sufficient to support the verdict.. Under such circumstances the County Court had no power to reverse the judgment as being against the weight of evidence (City of Brooklyn v. B. C. & N. R. R. Co., 11 App. Div. 168, 170, and authorities there cited), and this court will hardly interfere.

The next point suggested by the. appellant is that the justice had no power to treble the damages. Section 1184- of the Code of Civil Procedure provides that Where- double, treble, or other increased damages are given by statute, single damages only are to be found by the jury; except in a case where the statute prescribes a different rule. ' The sum so found must be increased by the court, and judgment rendered accordingly.’’ ■ This section would seem to be conclusive, but the appellant urges that it is not controlling, because its operation is confined to the Supreme Court, City Court of the city of New York, and the County Courts under the provisions of section 3341, subdivisions 4 and 1, of the Code of Civil Procedure. -It is conceded that section 1184 of the Code of Civil Procedure is new; that it was adopted to bring the practice within the rule laid down in Newcomb v. Butterfield (8 Johns. 342). and King v. Havens (25 Wend. 420), and it is questionable whether it is limited in its scope by the blanket provisions of restriction found in section 3341, adopted "at the time of formulating, the Code of Civil Procedure. It did not. purport to change the rule of law declared in the cases cited; it was merely declaratory of the law as it existed. ■ In King v. Havens (supra) it was said: . “ Treble damages are the legal consequence of the finding, as certainly as a judgment is the consequence of a . verdict. * * *.If the jury find the defendants guilty of the trespass as alleged within the act, they are to assess single damages, and it is then the duty of the court to treble them.” This being the law at the time of the adoption of section 1184 of the Code of Civil Procedure, and no intent being disclosed to modify the law as it existed, the mere fact that the section finds a place within a chapter which, for the purposes of the act as orig. inally adopted, was limited to certain courts, cannot have the effect of denying jurisdiction to Justices’ Courts, where such jurisdiction is specially provided for by law. Section 2862 of the Code of Civil Procedure provides (Subd. 2) that a justice of the peace shall have jurisdiction in “ an action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars; ” and section 2868 of the Code provides that A justice of the peace must hold, within his town or city, a court for the trial of any action or special proceeding, of which he has jurisdiction, brought before him. * * * He must hear, try and determine the same according to law and equity, and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme court.” There is no other provision made by law for the securing of treble damages under the provisions of section 654 of the Penal Code than such as are pointed out by section 1184 of the Code of Civil Procedure; and, as section 2868 of the Code of • Civil Procedure was under the consideration of the Legislature and was amended so recently as 1899, it may be assumed that the clause extending the powers of the Supreme Court to a justice of the peace for the purpose of carrying out the law is controlling. It is the province of the jury to determine the facts, not the law ; it .is for the jury to say what damages the plaintiffs have actually suffered, and then the law steps in and says that these shall be trebled. Section 1184 of the Code of Civil Procedure merely points out the method for greater certainty, but it does not change or limit the law, and it is absurd to say that the Legislature hi giving justices of the peace jurisdiction to hear, try and determine actions for personal injuries or injuries to property, where the amount claimed is less than $200, has denied to these courts the power to give the plaintiffs the judgment which the law provides under the circumstances established by the evidence.

For a third point the appellant suggests that a separate verdict against the wife was improper. There was no question of husband and wife involved in this controversy. The defendants, it may be, are husband and wife, but this fact does not appear in the record. Two persons are sued to recover damages for malicious trespass upon the property held by the plaintiffs under a lease. The evidence is insufficient to charge one of them, and the other is held to be guilty of the trespass. It is a civil action for damages, in which the policy of the law has seen fit to charge the guilty defendant three times the actual damages, and the fact that only one of two persons charged with the trespass is guilty does not deprive the plaintiffs of the right to recover.

But it is urged that the summons was not indorsed as required by the statute, and that the justice, therefore, acquired no jurisdiction. It is not disputed that the defendants appeared in the action and answered, without raising any question as to the regularity of the summons, and the only question which appears to have been raised by any stretch of construction, was upon a motion for a nonsuit after the answer was in and before any evidence was taken. It does not appear that any ground for this motion was stated, nor was there any exception to the denial of the motion. From the manner in which the action was conducted on the part of the defendants, it is "reasonable to conclude that the question of the alleged irregularity of the summons was never called to the attention of the justice; and, as we have already pointed out, the defendants would have no right to complain if it were held that they- had waived the right to raise this question on appeal. However, we have concluded to discuss the question upon its merits. The contention is that this action is governed by the provisions of section 1897 of the Code of Civil Procedure, which" provides that “ In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered,” etc. This section of the Code of Civil Procedure comes under the general head of Action by a private person for a penalty or forfeiture,” and section 1893 provides that “ Where a ■ penalty or forfeiture is given by a statute, to a person aggrieved by the act or omission of another, the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof ; or, if it -consists' of the forfeiture of a chattel, he may maintain an action to recover the chattel or its value, or other damages as the case requires.” It is in reference to this class of actions that.section 1897 of the Code of Civil Procedure speaks, and not of actions brought primarily to recover damages for injuries to property, where the penalty is incident to the maintenance of the cause of action alleged. That this is the correct view of the pro vision is evidenced by the next article of the Code of Civil Procedure (Chap. 15, tit. 4, art. 4), which is entitled “ Certain actions to recover damages for wrongs,” and section 1901, under this heading, provides that “ In an action, brought by the adverse party, as prescribed in the last section, the plaintiff, if he recovers final judgment, is entitled to recover treble damages.” No one has ever suggested that, in an action of the character provided for by section 1900 of the Code of Civil Procedure, it was necessary that the summons should contain» any mention of the statute. It was held in Sprague v. Irwin (27 How. Pr. 51) that the summons in an action for willful trespass upon land, though claiming treble damages, need not be indorsed, and we find no authority questioning this conclusion. We are of opinion, therefore, that section 1897 of the Code of Civil Procedure has relation to actions brought primarily for the recovery of penalties and forfeitures prescribed by statute, and not to actions for damages in which penalties are only incidental to the recovery, and depend upon the verdict of the jury and the operation of law.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order of the County Court of Orange county affirmed, with costs.  