MEMORANDUM. Cases involving judicial proceedings for forfeiture of penalties were tried by jury before the adoption of the 1846 Constitution ( Colon v. Lisk, 13 App. Div. 195, affd. 153 N.Y. 188; see, also, People ex rel. Lemon v. Elmore, 256 N.Y. 489, 493; 4 Lincoln, Constitutional History of New York, p. 50; 44 N Y Jur., Penalties and Forfeitures, §§ 7, 16). Therefore, section 2 of article I of the State Constitution guarantees the right to a jury trial in this forfeiture proceeding ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 244; Wynehamer v. People, 13 N.Y. 378, 426). Lawton v. Steele ( 119 N.Y. 226, affd. 152 U.S. 133), permitting the summary destruction of property of small value in order to abate a nuisance, is not applicable. The instant statute does not prohibit trial by jury; indeed it does not detail any of the proceedings to be followed. Hence it was incumbent on the court to provide the appropriate proceedings, including a jury trial mandated by the Constitution. The Supreme Court deprived respondent of his constitutional right by failing to afford respondent a jury trial. Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court, Westchester County, for a trial by jury.
Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur; Judge BURKE taking no part.
Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs.