
    George O. Sheldon, Appellant, v. Ludwig Baumann and David Froehlich, Respondents.
    
      Exemplary damages recoverable in an action fora trespass upon real property—when the question as to the right thereto is raised, at the trial.
    
    Exemplary damages are recoverable in an action brought for a trespass upon real property, and allegations contained in a complaint that the defendants “ unlawfully, willfully and wantonly, and without the plaintiff’s consent, in plaintiff’s absence, without any right whatsoever,” entered upon the plaintiff’s premises and took therefrom certain personal property of a value stated, and in so doing broke and injured other personal property against the protest of the plaintiff’s wife and daughter, who were violently pushed aside, are, if proved, sufficient to justify a recovery of such damages.
    Where, upon the trial of such an action, after the court has, with the consent of the defendants and without objection by the plaintiff, indicated its intention to-direct a verdict for the value of the property, the plaintiff offers to show the facts which would entitle him to recover punitive damages, and asks to go to the jury upon that question, but is refused both requests, to which refusal he excepts, he is entitled to have the action of the court reviewed upon appeal, although he has taken no exception to the court’s final ruling directing the verdict. .
    
      Appeal by the plaintiff, George O. Sheldon, from a judgment of the Supreme Court, entered in the office of the clerk of the county -of New York on the 11th day of January, 1897, upon the verdict of a jury rendered by direction of the court in favor of the plaintiff for twenty-five dollars, and also from an order entered in said -clerk’s office on the 29th day of January, 1897, denying the plaintiff’s motion for á new trial made upon the minutes.
    
      Francis A. Winslow, for the appellant.
    
      Evarts L. Prentiss and William H. Shepard, for the respondents.
   Rumsey, J.:

The action was for trespass on real property. The complaint alleged that, at the time therein stated, the defendants unlawfully, wilfully and wantonly, and without plaintiff’s consent, in plaintiff’s absence, without, any right whatsoever,” entered upon the premises of the plaintiff and took therefrom certain personal property of the value of fifteen dollars, and in so doing broke and injured ■other personal property of the value of ten dollars. The complaint then alleged that the entry upon the plaintiff’s premises and the taking were against the protest of the plaintiff’s wife and daughter, who were present and who were violently pushed aside by the def end-■ants’ agents who committed the trespass. The complaint contained ■other allegations setting out the injury to the feelings of the plaintiff’s wife and daughter, which are not material to ■ be considered here, and it demanded damages in the sum of $10,000 for the trespass. After a jury had been impanelled for the trial of the case, the court stated that it was apparent from the pleadings that, if the plaintiff recovered judgment, he.could not recover any more than the value of the property taken ; that the action was not for injury to feelings, but was for a trespass upon property; and the defendants wére asked if they would consent that a verdict be directed for the plaintiff for the value of the property taken, which they did. 'The court thereupon, after some discussion, ordered a verdict for twenty-five dollars, the value of the property taken and injured by. the defendants. The plaintiff moved for a new trial,, which was denied; and after judgment had been entered in favor of the defendants for the difference between the taxed costs and the amount of the verdict, the plaintiff took this appeal. ■ .

But two questions are presented. The first, whether the case shows that the plaintiff is in a situation to review the action of the court in ordering a verdict for twenty-five dollars only in his favor; and the second, whether such action was erroneous. The plaintiff did not except to the order of the court directing a verdict in his favor for twenty-five dollars, but, after the defendant had consented that the court direct a verdict for that sum, and the court had indicated a purpose so to do, the plaintiff’s counsel asked to go to the jury, on the ground that “ special damages under the pleadings and, general damages are' shown — punitive damages on a trespass.” The plaintiff then offered to show that he had been damaged especially by the acts of the defendants. This motion was denied and the plaintiff excepted. While there is some doubt whether the plaintiff properly raised the point which he seeks to argue here, yet, upon the whole, we are inclined to think that it was sufficiently presented to the trial court-., It is quite true that no exception was taken to the court’s final ruling directing a verdict in favor of the plaintiff; but the plaintiff offered to prove, as under his pleadings he was entitled to prove, the facts which would'en title him to recover punitive damages, and this offer was denied, and he was denied an opportunity to make that proof. To this, he excepted; and we think the offer and the exception together sufficiently advised the court and the defendants’ counsel of the position of the plaintiff and of the existence of the error relied upon. If an exception does this, it is sufficient to enable the excepting party to raise the question subsequently if the point relied upon was taken, although' it may have been awkwardly and clumsily done.

The only question remaining is whether, upon the pleadings as presented, a case might have been made for the giving of any other damages than those resulting from the taking and destruction of the personal property. The action was clearly brought for trespass upon real property, and the allegations of the plaintiff, stating as they did .that the trespass was committed unlawfully, willfully and wantonly and without any right whatsoever, were sufficient to entitle the plaintiff to exemplary damages if such a trespass had been proved. That exemplary damages may be given in an action for trespass on real property is not to be denied. (1 Addison on Torts [Wood’s ed.], 322; 26 Am. & Eng. Ency. of Law, 618; 5 id. 22.)

The circumstances of aggravation which would warrant a jury in giving exeiiiplary damages are sufficiently alleged, and tile plaintiff should have had an opportunity to prove them as he requested.'

For these reasons we think that the court was in error -in its ruling that- nothing more than twenty-five' dollars, damages could be recovered, and there should be a new trial, with costs to the appek lant to abide the event;

PattErsón, O’Bríeñ, Ingraham and Parker) JJ.; concurred.

judgment reversed, new trial ordered, costs to appellant to abide event.  