
    The People of the State of New York ex rel. Sid. H. Gates, Respondent, v. Irwin W. Fargo, Appellant.
    
      Trespass — the character of the action is not changed by .a prayer for an injunction restraining further trespasses — an execution against the person may issue.
    
    Upon an appeal from an order discharging the relator, Sid. H. Gates, from imprisonment upon an execution issued against his person, it appeared that the present defendant brought an action against the relator for trespass, setting forth various malicious acts of trespass on the part of the defendant in cutting down and carrying away timber, in which the plaintiff demanded equitable relief" by an injunction restraining future trespass, as well as the treble damages allowed by statute, and recovered judgment enjoining the defendant and for five dollars damages and costs. , .
    
      Held, that the gfavamen of the action was the wrong done to the property of the plaintiff by the defendant’s malicious acts, and that the plaintiff was entitled to an execution against the defendant’s person;
    That the demand for an injunction," restraining a continuance of the wrongful acts, did not change the character of the action, which ivas still one for a trespass.
    
      Appeal by the defendant, Irwin W. Fargo, from an order of the county judge of the county of Cattaraugus, entered in the office of the clerk of the county of; Cattaraugus.' on the :17 th day - of January, 1896, discharging the relator from imprisonment on an execution issued against his person.
    
      F. S. Wheeler, for the appellant.
    
      Hudson Ansley, for the respondent.
   Green, J.:

Irwin W. Fargo brought an action against Sid. H. Gates to recover damages for trespass and injury to the freehold by the defendant in that action, Sid. H. Gates, in cutting standing and growing timber upon lands of the plaintiff. The plaintiff alleged in his complaint that he was the owner of the land described therein, and thatfhe defendant wrongfully and unlawfully entered upon the same and cut down and carried away a quantity of valuable chestnut trees and timber of the plaintiff then standing and growing upon the land, and converted and disposed of the same to his own use; that he also cut down upon' the said lands a quantity of valuable chestnut trees and threatened to remove the same; that such acts of trespass were committed wrongfully, unlawfully and maliciously and without a special and lawful written license so to do, and without any authority therefor in any manner whatsoever; that he threatened to continue to commit trespass upon the said lands and premises, and to continue cutting down, carrying away and disposing of all of the timber standing and growing upon the land to his own use; that the trees and timber were of great value to the plaintiff, and that unless restrained from, the continuance of the commission of such acts of trespass and of cutting down and carrying away and disposing of trees and timber the said defendant would continue to cut down, carry away and dispose of a large ■ quantity of valuable timber from the lands and preinises to the great injury and damage of plaintiff; that by reason of such acts of trespass the plaintiff was greatly injured in his estate; that he had suffered damages thereby in the- sum of fifty dollars, and that by reason of said acts of trespass the defendant, by force of sections 1667 and 1668 of the Code of Civil Procedure, became liable to pay to the plaintiff treble the amount of such damages.

.. The plaintiff demanded judgment that an injunction' order pendente lite might issue to restrain the defendant from continuing to cut, draw away or dispose of the timber on the lands; that a perpetual injunction be granted in the action restraining and enjoining the defendant from the commission of any act of trespass upon the lands ,and premises, by cutting down,, carrying away or disposing of to his owin use, or the use of, any other person, any trees or timber Upon said lands -or premises, and that the plaintiff recover the sum of $150 against the defendant as damages for the several acts of trespass committed by him as. stated in the complaint, together with the costs of the action.

The defendant in liis answer admitted that plaintiff was the owner of the premises described in the complaint, but alleged that defendant was the owner of the timber mentioned therein; that he had purchased the same of plaintiff and was the owner of all the chestnut timber or other kind of trees or timber that he cut or removed.from the premises; and that the timber removed was so removed by the consent arid license of the plaintiff; and denied each and every other allegation of the complaint. .

The action was referred. The referee made his report in favor of the plaintiff upon all the questions at issue, and found that lie was entitled to recover damages in the sum of five dollars aiid costs, and to a permanent injunction. ' Judgment was entered thereon for :$5 damages, and $188.92 costs. Execution against the property of the defendant was duly issued and returned unsatisfied. .Thereafter an execution against, the-person- of the defendant was issued; he was •arrested by the sheriff and held in his custody until-a writ of habeas corpus was issued, and upon the return of' that writ an. order was made discharging the relator from the custody of thé sheriff.

The rélator claims that the appellant was not entitled to an execution against his person, as the-appellant had in his complaint joined ivitli; the action for trespass a demand for equitable relief. The learned county, judge decided the question presented upon that-ground alone. - In his opinion he says : “ It is' clear that this form of execution'might properly issue for the damages-and the costs aloné, if the equitable relief had not■ been also demanded and received, and the only question to be disposed of is, whether or not such joinder of a request for equitable relief prevents plaintiff from enforcing his judgment for damages and costs in the manner in which he now seeks to do.”

Upon that ground alone counsel for the relator .seeks to uphold this order.

The nature of the subject-matter of the action was the defendant’s wrongful act in the commission of a trespass upon the lands of the plaintiff. The plaintiff alleges in his complaint that the acts so complained of were wrongfully, willfully and unlawfully committed by the defendant. He further alleges that the defendant threatened to continue the commission of those wrongful acts ; and he asked in that complaint for protection from the continuance of the wrongful acts of defendant so complained of. By demanding such protection in his complaint the nature of the action was not changed. The wrong, and not the incidental question of protection from such wrong, still continued to be the subject-matter of the litigation. .The wrong alleged was the controlling issuable fact. The continuance of that wrong the plaintiff alleged would work irreparable injury and damage to his property. He claimed in his complaint that it was necessary, to prevent a continuance of those wrongful acts, that the court should interpose by injunction and restrain the defendant from such continuance. An adjudication in favor of the plaintiff has been made upon all the issuable facts. It was alleged in the complaint, and so found by the judgment, that the defendant therein had committed a wrong and that it was his intention to continue in the perpetration thereof.

There is but one count in this complaint and but one cause of action alleged, and that is for the past wrongs committed by defendant and protection from threatened continuance of the same.

The case of Niver v. Niver (19 Abb. Pr. 14) is conclusive against the contention of the relator. The learned county judge comments upon that case, and says that- it did not appear that the protection there granted was to be in form a permament injunction, and says: “ The court states that the action was for injury to property, and it seems fair to infer from this statement that no equitable relief was granted.”

He seems to have entirely misconceived the final result of that action. The complaint therein was for a willful and wrongfill injury to plaintiff’s property, and for wrongfully and willfully depriving her of the use of certain parts of such property. It set forth the will of her father, the injuries complained of, and then asked that the rights and interest of the parties to the action under such will—the defendant, her brother, being devisee therein—should be. adjudged and determined; that the defendant be required to remove certain obstructions he had interposed to the proper use of ■her property; that ah injunction be issued against him from interfering therewith, and for judgment for an injunction and damages for the injuries. An answer was interposed denying all the allegations in the complaint except those in regard to the will and the relations of the parties. The cause was referred to a referee to hear and decide, who reported in favor of the plaintiff for fifty dollars damages and costs and granting the relief restraining and enjoining the defendant as prayed for in the complaint. Pecicham, J., writing the opinion, says: “ The gravamen of the action is the wrongs done to the plaintiff’s property. There is but one count and that asks redress for past wrongs and protection for the future. * * * Here are no two causes of action. The action is substantially for injuries,, willful injuries, to plaintiff’s property. "x" "x" * This case comes within the plain provision of the'Code, section 179 (now § 549), for injuring property.”

I am of the opinion that the order herein, should be reversed, and the relator, Sid. H. Gates, remanded to the custody of the sheriff of Cattaraugus county.

All concurred.

Order reversed, and the relator, Sid. H. Gates, remanded to the custody of the sheriff of Cattaraugus county. No costs.  