
    Elizabeth Potter, Respondent, v. Joseph W. Bierwirth and Bridget Bierwirth, Appellants.
    Second Department,
    January 14, 1916.
    Beal property — vendor and purchaser — action by purchaser against vendor for willful and malicious injury to property pending conveyance — evidence — measure of damages—treble damages.
    An action by the assignee of a contract for the purchase of a dwelling house against the owners and vendors thereof, to recover damages for injuries alleged to have been willfully, maliciously and wantonly inflicted thereon by the owners pending the contract and conveyance, is maintainable.
    Such an action is not strictly one for waste under section 1651 of the Code of Civil Procedure, but is in the nature of the old action upon the case. Evidence in such an action examined, and held, to establish that the defendants had deliberately and maliciously injured the property during the term of the contract.
    As a general rule, the measure of damages in such an action is the difference in value before and after the alleged injuries.
    
      It seems, that if the defendants in such a case claim that the damages may be repaired at less cost than the resulting impairment of value while they are unrepaired, they may invoke and have the benefit of this exceptional measure of damages.
    The plaintiff in such an action is not entitled to treble damages, because his ownership during the contract period is merely equitable, and not such as to entitle him to the benefit of section 1433 of the Penal Law, which applies only to damages to 1 ‘ real or personal property of another ” —that is to one holding the legal title.
    Appeal by the defendants, Joseph W. Bierwirth and another, from, a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 19th day of May, 1915, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 29th day of May, 1915, denying defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 15th day of May, 1915, granting plaintiff’s motion for treble damages, and directing the clerk to enter judgment on the verdict and treble its amount.
    
      Matthew J. Smith, for the appellants.
    
      Walter F. Peacock, for the respondent.
   Mills, J.:

This is an appeal hy the defendants from a judgment of the County Court of Queens county, entered upon the verdict of a jury rendered at a trial term thereof, and from an order made by the county judge at said term, denying the motion of defendants, upon the minutes, for a new trial. After the rendition of the verdict the plaintiff made a motion for the allowance of treble damages, and the court reserved decision upon the motion, the defendants’ attorney taking exception in case the' motion should be granted. Later the judge granted the motion, and a separate order was entered to that effect, and the appeal is also from that order.

The action is unique, being brought to recover damages to a certain dwelling house, alleged to have been willfully, maliciously and wantonly inflicted thereon during the period when a contract of sale and conveyance thereof was pending between the plaintiff, as assignee of the contract, purchaser, and the defendants as owners and vendors. The answer is a denial of the allegations as to the injury. The case was submitted to the jury upon the instruction that, if they found that during the said contract period the defendants willfully, maliciously and deliberately injured the property and thereby depreciated its value, plaintiff is entitled to a verdict for the amount of such depreciation; otherwise that the verdict should be for the defendants.

The appellants here make three contentions: (a) That the trial judge erred in denying defendants’ motion to dismiss the complaint upon the ground that the action was not maintainable; (b) that the trial judge erred in denying defendants’motion for a new trial upon the ground that the verdict was against the greater weight of the evidence; and (c) that the trial judge erréd in granting the plaintiff’s motion for treble damages.

As to the first of these contentions I think that an action of this sort is maintainable. It is not a strict action for waste under section 1651 of the Code of Civil Procedure, but it is an action in the nature of the old action upon the case. Such an action has several times been upheld as a proper remedy even for a mortgagee to seek by which to recover damages from a mortgagor, who while in possession, has wasted the premises to the impairment of the security. (Van Pelt v. McGraw, 4 N. Y. 110.)

While neither brief cites any case directly sustaining this action, yet, in the case of Worrall v. Munn (53 N. Y. 185), cited in respondent’s brief, and also reported upon a former appeal in 38 New York, 137, such a claim as that made here by the plaintiff was upheld. In that case the action was in equity by a purchaser to compel specific performance of the contract of purchase, and, as an incident to that relief, the purchaser was permitted to recover damages for willful waste committed by the vendor during the pendency of the contract. I perceive no distinction in principle between that case and the one here at bar, and think that the former may be well regarded as a precedent for the latter. I conclude, therefore, that such an action as this is, upon the facts alleged in the complaint, maintainable.

As to the second contention of the appellants, namely, that the verdict finding that the defendants had deliberately and maliciously inj ured the property during the contract term is against the greater weight of the evidence, I do not think that we can so hold. It seems to me that the evidence was ample to show that the defendants, after they discovered that plaintiff, their tenant, was the real purchaser, the contract having been taken from them by and in the name of another, systematically set themselves at work to mar and disfigure the premises. The house was quite new, having been finished in February, 1913; the architect of the building was in the rooms the latter part of December, 1913, and found everything in good condition; the contract was made the following March, and there was ample proof that the premises were then in good condition, as naturally they should have been; and March 20, 1914, after the defendants had learned that the plaintiff was the real purchaser, the defendant, Mrs. Bierwirth, in vigorous language manifested her resentment. Soon the plaintiff, in her apartments above, heard noises from below indicating scratching, scraping and hammering; and, after defendants vacated the early part of April, it was found that the rooms which had been occupied by the defendants had been defaced in a manner which could not well have been accidental, namely, among other things of the sort, there had been scratched on the woodwork the family name of the defendants; the words “ red head,” in obvious allusion to the color of the plaintiff’s hair had been written on the parlor door; bricks had been torn out of the mantelpiece; on the bath room door the words “ Beware of the mute ” had been cut, being a reference to the fact that a visiting relative of the plaintiff was a mute; and there were various other marks, cuts and gouges, all fresh in appearance.

Without attempting further detailed review, I am satisfied that the proof fully warranted the jury in finding that the defendants had willfully, deliberately and maliciously defaced the property, thereby injuring it during the contract term, although the defendants denied that they had committed such acts.

Incidentally to his second contention, the learned counsel for the appellants claims that the wrong rule of damages was given to the jury, being that of the difference in value before and after; but the defendants did not except to that rule. Still I understand that in general that is the correct rule. If the defendants in such a case claim that the damáges may be repaired at less cost than the resulting impairment of value while they are unrepaired, they may invoke and have the benefit of that exceptional measure of damages; but they made no such claim here. (Worrall v. Munn, supra, 190; Ogden Lumber Co. v. Busse, 92 App. Div. 143.)

As to the third contention made here in behalf of the appellants, namely, that the trial court erred in granting plaintiff’s motion for treble damages, it seems to me that section 1433 of the Penal Law, upon which such motion was based, is not applicable to this action. That is a penal statute and, therefore, is to be strictly construed. So construed, it applies only to “real or personal property of another ” —■ that is, than the wrongdoer. This, I take it, means legal ownership. Here the ownership of the plaintiff, while the contract was pending, was merely equitable and not at all legal. (Worrall v. Munn, supra.)

The learned counsel upon neither side has been able to cite here a case directly upon this point; and I have been unable to find any such case, or indeed any case where the question has heen considered. In the Worrall Case (supra) such damages allowed were. simply single damages. Apparently no claim for treble damages was considered or even made. In the several cases like the Van Pelt Case (supra), where a mortgagee has brought action against the mortgagor to recover damages for waste committed by the mortgagor in possession, to the impairment of the security, single damages alone have been claimed and allowed. I have personally examined the several cases of the sort cited in the opinion in the Van Pelt Case (supra), and the several subsequent cases in which that case has been cited, and I find none in which the question of treble damages has even been raised.

It is, therefore, my conclusion that the plaintiff was not entitled to treble damages, for the reason that her ownership during the contract period was merely equitable and not such as to entitle her to the benefit of section 1433 of the Penal Law. The order allowing treble damages should be reversed and the motion denied.

The judgment of the County Court of Queens county should be modified by reducing the damages to the amount allowed by the verdict, namely, $125, and as so modified the judgment and the order denying the motion for a new trial should be affirmed, without costs.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.

Judgment of the County Court of Queens county modified by reducing the damages to the amount allowed by the verdict, namely, $125; and as so modified judgment and order denying motion for new trial affirmed, without costs. Order allowing treble damages reversed and motion denied.  