(dissenting, in part):
I am unable to concur in the conclusion that the case presented by this record is one justifying punitive damages. Voltz v. Blackmar (64 N. Y. 440), cited by Mr. Justice Gaynob in support of his conclusion, recognizes the well-settled law of this State that in this class of cases “ tlie defendant is entitled to the benefit of any circumstances tending to show that he acted under an honest belief that he was justified in doing the act complained of,” and within that rule the case at bar discloses no foundation for punitive damages. The defendant Arnold was a constable of the town of Babylon, who had been instructed by the supervisor of that town to remove the nets from the waters of the bay and to employ the necessary help for that purpose. Under these instructions he employed his codefendants. There is no evidence of personal ill-will on the part of either defendant towards the plaintiff, and nothing to charaSterize their acts as malicious. The nets were owned by a nonresident, who had been notified prior to their removal by the defendant Jackson to stop fishing in the bay, to which notice no attention was paid, as Swezey admits. The fact that the nets were leased to, and being used by, the plaintiff—a resident of the town — was not known to the defendants until plaintiff told them as they were taking up the last one of the thirty-four nets removed, and none were disturbed after this information was given. I do not think their conduct in removing the nets before the-plaintiff reached the scene and forbade further action on their part, or their retention of the nets taken up for a reasonable time to enable them to report to the town authorities and verify the claims of the plaintiff, was so grossly *388negligent or oppressive as to remove the case, from the usual rule of compensatory damages. '
1 think upon reflection, however, that the judgment is excessive and should be modified to compensatory damages-. Swezey testifies that when they went to the bay they took one hundred and seven nets, and that thereafter they brought up either nineteen or twenty more, which would make one hundred and twenty-six or one hundred and twenty-seven nets in use at the time of the acts complained of. On November sixteenth thirty-four were taken by the defendants, leaving ninety-two, which the plaintiff continued to use. There is no evidence in the record that the quantity of fish taken from' the thirty-four nets while in' use Was greater than that taken from a like number of the other nets; no evidence that the water in which the nets .taken were set was better for fishing purposes than that occupied by the nets not disturbed ; no evidence that the water in which the nets taken were set was not utilized after their removal by setting therein an equal number of the remaining nets, and there is evidence given by both the plaintiff and his witness Swezey tending to show that the fishing was poorer and not prose? cuted as diligently after November sixteenth as before. There is nothing in the record warranting the conclusion that the nets were not equal revenue-producers, and they should -be so regarded. If the nets taken had a greater earning capacity than those not disturbed, the plaintiff should have proved that fact. In the absence of such evidence the presumption that each net possessed the same earning power must obtain and form the-basis of a proper award •of damages. For the seventeen days following the taking of the nets, before-the expiration of the contract upon which the plaintiff’s rights are predicated, the ninety-two nets in use yielded an average daily revenue of five and two-tenths cents, which for the thirty-four nets taken would amount per day to one dollar, seventy-six and eight-tenths cents, and for the seventeen days in which plaintiff had the right to use them to thirty dollars and five cents, to which amount his recovery should be limited.
I, therefore, vote to modify the judgment by reducing the recovery to thirty dollars and five cents, and as so modified to affirm with costs.
Judgment of the.County Court of Suffolk county affirmed, with costs.