
    Frank Duclos, Appellant, v. Solomon Kelly, Respondent.
    (No. 1.)
    Third Department,
    November 13, 1907.
    Pleading — trespass—joinder of legal and equitable causes — when plaintiff entitled to nominal damages — evidence — harmless error — injunction restraining future trespass.
    An action for trespass upon lands and'a suit in equity for an injunction to prevent further trespass may be joined in one complaint, -and where the damages by trespass are substantial and judgment therefor is demanded, it cannot be said that such damages are incidental only to the suit in equity.
    When, in an action to recover damages for trespass on lauds by cutting trees and also for injunctive relief, the trespass is admitted, it' is error to dismiss the whole complaint upon the theory that the plaintiff waived the issue of trespass at trial, for such nonsuit has the effect of justifying the trespass confessedly committed, and under the circumstances plaintiff is entitled- to nominal damages.
    Although a contract which the defendant contends authorized him to cut trees has been admitted in evidence, although not pleaded in justification, the error is harmless when the jury has found as a fact that the parties did not by that contract intend to include the trees cut by tbe defendant.
    An injunction restraining a further cutting of timber by the defendant should be granted when he has cut timber under a contract which he claims confers authority to do so, but which, as a fact, does not confer such authority.
    Appeal by the plaintiff, Frank Duclos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 11th day of January, 1907, upon the decision of the court rendered after a trial at the Essex Trial Term, certain questions having been submitted to the jury, dismissing the plaintiff’s complaint. .
    The complaint alleges that the plaintiff is the owner and in sole possession of parts of lots 77 and 78, Peru Bay tract in Essex county, N. Y.; that .the defendant, without permission or right, has entered upon said land and cut timber and wood qf the value of upwards of $100, and threatens to continue to cut timber and wood from said lot until the whole thereof is removed; that said cutting and removal will work irreparable damages to the farm of plaintiff which cannot' be compensated in money. The plaintiff, therefore, demands judgment for an injunction, and for $100 damages and the costs of the action.
    The defendant’s answer admits the plaintiff’s ownership and possession of the premises, and denies each and every other allegation of the complaint.
    Upon November 1, 1899, plaintiff received by deed, from one Carrie C. Boardman, certain property described as being parts of lots Nos. 77 and 78, Pern Bay tract,, and specifically described in said deed. Upon the 10th day of August, 1903, the defendant made a contract with the plaintiff, whereby for the consideration of $400 he was to cut and take certain pine, spruce and hemlock. upon lots Nos. 77 and 78, “ now owned and occupied by party of the first part” (the plaintiff). At the time of the making of this contract, plaintiff was in possession under contract of purchase of certain other land within lot's Nos. 77 and 78, owned by one Mira Boardman; but at the time of the making of the contract the plaintiff had no deed of said premises, and did not receive a deed until the 7th day of December, 1903. The contract of purchase was not introduced in evidence, as it could not be found.' It is shown, however, that that contract forbade the cutting of timber upon the lot, except in payment for the lot, and the cutting of timber was not authorized except upon the payment of the money value of the timber cut. It was' conceded that the timber- cut, for which the action was brought, was upon the lot which was afterwards deeded to the plaintiff from Mira Boardman. The court left it to the jury to say whether the parties understood that the contract of August tenth authorized the defendant to cut wood upon .the Mira Boardman lot.- -The jury answered that the parties did not so understand.
    The court further left it to the jury to (Jetermine what damage had been done to the plaintiff by the cutting of this timber upon this lot. It seems that the timber had been, cut and skidded but not removed, and the jury found that no damage had been suffered. Thereupon the court adopted the findings of the jury, and finding that no threat had been made to cut further timber dismissed plain- ■ tiff’s complaint, with costs.
    
      Adelbert W. Boynton, for the appellant.
    
      C. J. Vert, for the respondent.
   Smith, P. J.:

The plaintiff might have lawfully joined in his complaint a cause of action for trespass and an equitable cause of action for injunction to prevent further trespass. Where the damage is substantial and judgment therefor is demanded in the complaint, it cannot be said that damage alleged is incidental only to the equity action. It is asserted by the trial judge, in his opinion, that the cause of. action for trespass was .Waived and not insisted upon in the proceedings upon the trial. The difficulty with this position lies in the fact that such a waiver does not appear in the judgment roll, and if injunctive relief be denied a judgment of no cause of action, in pursuance of such an assumed waiver, has the effect of justifying the trespass confessedly committed. "Upon this cause of action we . think the plaintiff should have judgment for six cents damages.

The admission in evidence upon the part of the defendant of the contract of August tenth over the plaintiff’s objection that it had not been pleaded was probably error. In Van Buskirk v. Irving (7 Cow. 35) the head note in part reads: The “ matter of justification or excuse must be pleaded, in trespass quare clausum vel domum fregit." (See, also, Root v. Chandler, 10 Wend. 110 ; Haight v. Badgeley, 15 Barb. 499 ; Beaty v. Swarthout, 32 id. 293.) In 12 Abbott’s Cyclopedic Digest (p. 902) it is stated: “ Justification by virtue of authority or easement must be pleaded by defendant.” We are not satisfied, however, that the reception of this evidence, though erroneous, has harmed the plaintiff. The contract itself contains a latent ambiguity. Whether it referred to the Mira Boardman lot, which the plaintiff held under a restricted contract, depended upon the understanding between the parties at the time the contract was made. The jury has found that the parties did not intend, in the making of the contract of August tenth, to include the Mira ■ Boardman ,lot. That contract, therefore, is no defense to the plaintiff’s action. Moreover, the contract tends to strengthen the plaintiff’s cause of complaint. The learned trial judge has denied any injunctive relief .upon the ground that no threat has been shown to cut further timber upon this lot. I can hardly conceive how a stronger threat could have been made than is implied in the actual cutting of timber under a claimed' right so to do. In the absence of a right so to cut said timber, such facts would seem not only to authorize but to morally require the court to grant its injunctive relief, and, in our judgment, the learned trial judge should have granted to the plaintiff the injunction asked for. Upon the facts found and the undisputed evidence, plaintiff should have upon this appeal the injunction asked for.

The judgment should, therefore, be modified so as to enjoin defendant from trespassing upon the said Mira Boardman lot and from cutting timber therefrom, with the costs of the action to the plaintiff. As thus modified the judgment should be affirmed with costs to plaintiff.

All concurred.

Judgment modified to enjoin defendant from trespassing upon the Mira Boardman lot and from cutting timber therefrom, with the costs of the action to plaintiff, and as thus modified affirmed, with costs to plaintiff. o  