(dissenting):
The action was brought under section 280 of chapter 31 of the General Laws, known as the Fisheries, Game-and Forest Law (Chap. 488, Laws of 1892, as amd. by chap. 395, Laws of 1895, and by chap. 114, Laws of 1896). The complaint alleged two causes of action :
1. To recovér a penalty of $10 for each tree cut and carried away from the lands' of the forest preserve of the State, 500 trees in all, $5,000:
2. To recover damages for trespass upon and injury to the forest preserve, in cutting and carrying away 500 trees, of the value of $5 each, amounting to $2,500; and to recover treble damages therefor, under sections 1667 and 1668 of the Code of Civil Procedure, amounting to $7,500.
Judgment was demanded for $12,500-in all.
The demurrer interposed was upon the ground that the two causes of action were improperly united under section 484 of the Code of Civil Procedure, in that:
1. The two causes of action did not belong to any one of the subdivisions of. section 484.
2: -The two causes of action were not consistent with- each other.
*594The first ground of demurrer is not well taken. The two causes of action were upon claims arising out of the same transaction, and were, therefore, covered by subdivision 9 of section 484. By chapter 590 of the Laws of 1900, taking effect' April 23, 1900,. tills section has been amended by adding a subdivision 10, to cover-penalties under the Fisheries, Game, and Forest Law, but this does not change the effect of subdivision 9. Technically subdivision 9 refers to the foregoing subdivisions, and subdivision 10 follows it, but a fair construction makes subdivision 9 cover subdivision 10, as well as the subdivisions which literally go before it. Ho question was raised on the argument but that the two causes of action arose out of the same transaction or transactions connected with the same subject of action. The only question is whether the two causes of action were consistent with each other. . They belonged to one of the subdivisions of the section. They affected all the parties to the action, and they did not require different places of trial.
It is claimed.that they were not consistent with each other, because,
1. The one was for a penalty, and the other for treble damages for trespass on land in cutting and carrying away trees.
2. They required different modes of trial and defense, and the relief as to the causes of action was different and could not be given in the sainé action.
The causes of action were not inconsistent, because one was for a. penalty and the other for damages for trespass. The penalty was given for a wrongful act, prohibited by statute. Both causes of action were, therefore, in tort.
The two causes of action do not require different modes of trial, except that in one case the amount of recovery is fixed by statute, ten dollars per tree, and in the other case the amount of recovery requires proof of the actual damages, the value of the trees, which is to be trebled under the provision of the Code, unless the defendants plead, and the verdict, report or decision finds, that the injury was casual or involuntary, or that the defendants had probable cause to believe that the land was their oWn "or that the trees-were taken for the purpose of repairing or making a public road, or a public bridge, by authority of a commissioner or overseer of highways, as provided by section 1668 of the Code.
There would be no difficulty in making this additional proof or in. *595obtaining the verdict, report or decision by reason of the two causes of action being united.
In the case of trespass the damages awarded in the verdict, report or decision would be single ; the. damages would be trebled after-wards in the judgment. The report or decision could state the facts separately and then judgment could be rendered accordingly. If the verdict should be a general one, including the recovery upon both causes of action, there could then be no trebling of damages because the amount of actual damage could not be ascertained. In that event the People alone would suffer, the defendants would not be prejudiced and could not complain. The court would, however, have power, when taking a finding from the jury as to defendants’ defense against trebling the damages, to take a further finding, separately stating the amount awarded as a penalty and the amount awarded as actual damages for the trespass under section 1187 of the Code, and judgment could then be rendered accordingly. The facts could be proved, and then the rights of the parties could be protected in making the judgment and reviewing the same.
The only additional suggestion made by the defendants is that a recovery of the penalty is a bar to a recovery for damages for the trespass under section 1962 of the Code, and this is the ground upon which the demurrer was sustained in the court below. This was clearly erroneous. That section merely provided that where a penalty is incurred to. the People, and the Attorney-General or a district attorney brings an action therefor, a recovery in such action
bars a recovery in any other action for the same cause; that is, for any other penalty incurred for the same act. There is no reason in holding that a recovery for a penalty under section 280 of the Fisheries, Game and Forest .Law bars a recovery for the trespass under the same section, and even if it does, effect can be given to such holding as well when both causes of action are alleged in one complaint as when they are in separate complaints in separate actions. Section 1962 does not provide that one action is a bar to the other, or that a recovery in one action is a bar to another action, but that a recovery in one action is a bar to a recovery in another. . Ho reason is apparent why these two causes of action may not be prosecuted in one action as well as in two separate actions. Both causes of action are given by the same section (280) of the Fisheries, Game and For*596est Law; all the moneys recovered from both causes of action are to be paid to the commissioners under that act,' and all are to he used by them for the expenses of the prosecutions and the general expenses of the commission in carrying out the provisions of the law.
It is better- to limit the number of actions so far as possibleand inasmuch as no' injury can be done to the defendants by joining such causes of action, and all their rights can be protected, as well in one action as in separate actions, the causes of action should he united and the whole matter settled in one action;
Tlie judgment appealed from should be reversed, with costs, and the demurrer overruled,- with costs, with leave to plead over upon payment of costs in this court and in the court below within twenty-live days after entry and service of a copy of this decision.
Interlocutory judgment affirmed, without costs of this appeal to either party, with leave to plead over.
*597DETERMINED IN THE THIRD DEPARTMENT IN THE APPELLATE DIVISION, 1900.