The defendants, Ripley and Duff, were charged by separate information filed by the district' attorney of Richmond county with a violation of section 1425, subdivision 3, of the Penal Law, which provides that “ a person who willfully severs from the freehold of another, or of the People of the State, any produce thereof, or anything attached thereto, is guilty of a misdemeanor.”
By stipulation, the defendants were jointly tried.
The charges involved in the informations here arose after the defendants had removed a frame bungalow, in the course of construction, from the property, to which they1 claimed title and upon which they have lived for the last nine years. The timbers so removed were placed by the defendants over the line they claimed as their boundary line.
I am satisfied by the record before me that the defendants acted without undue force or any malice.
My opinion is and I hold that unless it can be proven beyond a reasonable doubt that the acts complained of were committed maliciously that the case would not warrant a conviction. The word “ willfully ” as used in this section does not mean volun*327tary or intentional act which is wrongful. As was stated by the Court of Appeals in Wass v. Stephens (128 N. Y. 123; see also 12 N. Y. Ann. Digest, 1341), “ it includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wanton or lawlessness.” While the Wass case (supra,) dealt with another section of the Penal Law, yet the underlying principle of the case should govern the decision here.
The defendants in the case at bar regarded the acts of the builder of the bungalow as constituting a trespass upon their land to which they claimed title, and which title seems to be based, as appears from the evidence, upon several tax deeds and other deeds of records covering a long period from the owner of the record title and an occupancy undisturbed for several years. Surely it would work a serious injustice to hold that such acts, under these circumstances, constitute a reckless and lawless disregard of the rights of another from which the court might spell a malicious or wanton wrong; more particularly when it has beeti. established by the defendant that they acted in good faith and upon reasonable ground, believing that they are the owners in fee of the land in question. (See also Cook v. Bartlett, 100 N. Y. Supp. 1032; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; Van Siclen v. Bartol, 95 Fed. Rep. 793, 798; N. Y. Fidelity, etc., Co. v. Timmonsville Bank, 139 Fed. Rep. 101, 103; 40 Cyc. 944.)
Aside from the question as to whether the.conduct of these defendants was such willful wrongdoing as made them criminally liable, still I believe that the record here presents enough on behalf of the defendants to give rise to a reasonable doubt as to whether the title of the freehold in question is in some person other than these defendants.
I vote, therefore, to acquit the defendants.
O’Keefe, J., concurs.
Defendants acquitted by unanimous determination of the court.