
    Henry P. Pfohl and Anna Pfohl, Respondents, v. John P. Rupp and William F. Wieberg, Appellants.
    Fourth Department,
    March 3, 1915.
    Trespass — cutting shade trees without owner’s consent — damages — treble damages.
    In an action for trespass in cutting shade trees without plaintiff’s consent, in which treble damages are claimed under sections 1667 and 1668 of the Code of Civil Procedure, actual damages sustained may be recovered, where it appears that plaintiff was not the owner of the trees, but that they were within the limits of a public highway upon which his premises abutted, and that their destruction was not necessary for purposes of improvement.
    In order to recover treble damages under said sections of the Code of Civil Procedure the plaintiff must be the owner of the trees cut.
    Appeal by the defendants, John P. Rupp and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 23d day of January, 1914, upon the verdict of a jury for $150, found as the actual damages sustained by plaintiffs, which amount, after the verdict on motion of the plaintiffs, was trebled by the court and judgment entered accordingly; also, an appeal from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes.
    
      H. W. Huntington, Alfred L. Becker and Andrew T. Beasley, for the appellants.
    
      Mark P. Kerr, for the respondents.
   Per Curiam:

This action was for trespass in cutting without plaintiffs’ consent two shade trees which plaintiffs alleged were at that time growing upon their land. Treble damages were demanded in the complaint. The defense was a general denial.

The court seems to have instructed the jury to the effect that one of the theories upon which plaintiffs might be found entitled to a recovery of damages was that though the trees may at the time they were cut have been growing upon premises, the fee of which was not in plaintiffs, yet if they were found to be within the limits of a public highway, upon which plaintiffs’ premises abutted, and if their destruction was not necessary for the purpose of improving the highway, plaintiffs might still be entitled to damages for the destruction of the trees. (Donahue v. Keystone Gas Co., 181 N. Y. 313.) If the jury adopted this theory in awarding damages, then the damages awarded were for the loss of plaintiffs’ easement in the trees and not for cutting trees which plaintiffs owned. It seems that such damages, which are necessarily confined to the actual damages sustained, may be recovered in an action brought for treble damages under sections 1667 and 1668 of the Code of Civil Procedure. (Dubois v. Beaver, 25 N. Y. 123.) But in such case the recovery is not had as owner of the trees cut, which is a prerequisite to the right to recovery of treble damages under the Code sections above referred to. So far as applicable to the present action these sections provide only that treble damages may be recovered in a case where a person “cuts down * * * any * * * tree * * * on the land of another, without the owner’s leave.” (Kellar v. Central Telephone & Telegraph Co., 53 Misc. Rep. 523.)

The judgment should be reversed and a new trial granted, with costs to appellants to abide event, unless the plaintiffs within twenty days after the entry of the order herein and notice of entry thereof stipulate that the judgment may be amended as of the date of entry thereof by striking therefrom all provisions as to the award of treble damages and that the damages awarded thereby be reduced to the sum of $150, in which case the judgment as so modified is affirmed, without costs of this appeal to either party.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellants to abide event, unless the plaintiffs shall, within twenty days, stipulate that the judgment be modified as of the date of entry thereof by striking therefrom all provision as to treble damages, and that the damages awarded thereby be reduced to the sum of $150, in which event the judgment is modified accordingly, and as so modified is, together with the order, affirmed, without costs of this appeal to either party.  