
    Bernard Marchand, Plff, v. Harry D. Harber, Def't.
    
      (Supreme Court, New York Trial Term,
    
    
      Filed March 9, 1896.)
    
    Damages—Treble—Trespass.’
    Under § 1669 of the Code, a person, who has no estate in the premises but merely bare possession, is not entitled to treble damages merely because ejected on process void solely by á defect in the petition filed in initiating summary proceedings against him.
    Motion for award of treble damages,
    
      Hal Bell, for plff; A. Finelite, for def’t,
   McADAM, J.

The practice if for the jury to find single damages, and for the court, under the statute, to treble them in a proper case. Newcomb v. Butterfield, 8 Johns. 342; King v. Havens, 25 Wend. 420; Warren v. Doolittle, 5 Cow. 678; Anon., 4 Wend. 216; Du Bois v. Beaver, 25 N. Y. 123. The evident object of the provision as to treble damages (Code, § 1669) was to prevent wanton invasion of rights of property by awarding them in lieu of exemplary damages (Field, Dam. § 848). But the statute is to be interpreted as a penal one, and the facts disclosed do not bring the case within its spirit or intent. The proofs offered neither called for exemplary damages at the trial, nor for treble damages in lieu thereof now. The plaintiff had no estate in the premises. He merely had the bare possession, and, though ejected on void process, such ejectment was unlawful solely by reason of a defect in the petition filed in initiating the summary proceeding to remove him. He was not dispossessed in a forcible manner inhibited by the statute against forcible entry and detainer, and is not, therefore, entitled to the treble damages claimed. Willard v. Warren, 17 Wend. 262; People v. Smith, 24 Barb. 18; Wood v. Phillips, 43 N. Y. 158; People v. Field, 52 Barb. 214; Labro v. Campbell, 17 St. Rep. 749. There was no wanton violation of any right of property. In Compton v. Chelsea, 139 N. Y. 538; 54 St. Rep. 843, the plaintiff claimed title, and the action was in ejectment fot restoration to the possession from which he had been actually disseised vi et armis, without any attempt by the trespasser to resort to legal pro'ceedings. That case bears no analogy to this. See, also, Eten v. Luyster, 60 N. Y. 253.

Motion denied.  