
    AndrewArmbruster, Resp’t, v. Hiram E. Wilson, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1887.)
    
    1. Replevin—Distraining cattle—Fence viewers—Do not exist under THE CHARTER OP THE CITY OP ROCHESTER—LAWS 1880, CHAP. 14, §§ 8-149.
    Defendant, within the limits of the city of Rochester, distrained plaintiff's cow, damage-feasant, and kept the same in his possession for twelve days, and refused to deliver her to plaintiff on demand. During this time he did not institute any proceedings for the purpose of having his damages assessed by the fence-viewers, as provided by Revised Statutes, part 3„ chapter 8, title 2. Upon action brought to recover possession of the cowl. Held, that the board of assessors and highway commissioners of the city of Rochester, created by Laws 1880, chapter 14, sections 8-149, are not authorized to act as fence-viewers in cases of distress made under the provisions of Revised Statutes, and that these provisions were therefore necessarily inoperative.
    2. Distress op chattel damage-peasant—Revised Statutes,pt.3,ch.8, title 2—Repeal by implication not pavored.
    
      Held, that the omission to provide the necessary instrumentality to enforce the law within the city limits, did not furnish satisfactory evidence that the legislature intended to repeal the statute and restore the common law rules on the subject of distress, and that the omission might be regarded as unintentional. Repeal by implication is not favored.
    3. Same—Failure op distrainor to comply with statute—Property MAY BE REPLBVINED BY OWNER.
    
      Held, that the remedy given by statute as a means of securing indemnity for the damages sustained, was in addition to the common law right of action for damages, and the injured party might elect which he would pursue. That the distrainor acted at his peril, and if unable to comply with the requirements of the statute because the fence-viewers do not exist, or because of his inability to find them within the prescribed time, the owner might bring replevin to recover the possession of the property.
    Appeal from a judgment of the Monroe county court in. an action of replevin to recover the possession of one cow. The jury found a verdict for the plaintiff and assessed the value of the property at forty-five dollars and the damages for detention at seven dollars. At the close of all the evidence the court held that there was no dispute as to the material facts and as a matter of law the plaintiff was entitled to judgment, submitting to the jury the question of damages.
    
      George W. Humphrey, for app’lt; Sullivan & Morris, for resp’t.
   Barker, J.

By the bill of exceptions it appears that the defendant, within the territorial limits of the city of Rochester, distrained the plaintiff’s cow, damage-feasant, and kept the same in his possession for the period of twelve days and refused to deliver her to the plaintiff upon his demand. During all the time the defendant had possession of the cow, he omitted to institute any proceedings for the purpose of having his damages assessed by fence viewers as provided in title 2, chapter 8, part 3 of the Revised Statutes, entitled “of distraining cattle and other chattels doing damage and of distraining in other cases.”

The defendant contends that this statute has been abro-gated as to the city of Rochester, and in cases of distress arising within its territorial limits the rule of the common law prevails. The city of Rochester was incorporated in the year 1834. See Session Laws of that year, chapter 199. At that time the provisions of the statute were in full force and effect and applicable to the territory now embraced within the city Emits.

The appellant claims that the provisions of the city charter are inconsistent with and repugnant to the statute on the subject of distress and'are impliedly repealed and the intention of the legislature to abrogaté the same as to the city of Rochester is fairly inferred from the omission to create a pubEc officer authorized to discharge the duties of fence viewers. It must be conceded that unless there is a fence viewer, then the statute necessarily becomes inoperative.

Whenever a distress is made of cattle the statute requires the person making the same *o apply, within twenty-four hours thereafter, to two of the fence viewers of the town to appraise the damage. Section 1. The assessors and commissioners of highways-located in any town are authorized to discharge the duties of fence viewers in their respective towns. 1 Revised Statutes, 343, marginal page. The territory embraced within the city Emits ceased to be a part of the several towns from which it was .taken, and the assessors and highway commissioners of those towns cannot act as fence viewers in a case of distress arising within the city Emits. By the charter a board of assessors, and highway commissioners were created, each possessing the powers and charged with the duties therein specificaUy mentioned. See present charter, Laws of 1880, chapter 14, §§ 8-149. We incline to the opinion that these officers are not authorized to act as fence viewers in cases of distress made under provisions of the Revised Statutes. The assessors and highway commissioners of the several towns in the state are authorized to act as fence viewers only by force of the statute already referred to. Ho such power is in terms conferred on the assessors and highway commissioners for the city and the nature and character of their duties are in most respects unlike those imposed upon the same class of officers for the towns. There is no clause in the charter which in terms abrogates the provisions of the Revised Statutes in cases of distress arising in the city; nor is any reference whatever" made to the subject. We are unable to discover any intention of the legislature, to repeal or interfere with the6provisions and operations of the general laws then in force on the subject of distress. The omission to provide the necessary instrumentality to enforce the law within the city limits does not furnish satisfactory evidence that the legislature intended to repeal the statute and restore the harsh rules of the common law on the subject of distress.

It is the undoubted rule that repeals by implication are not favored. Where there is no repealing clause in a later statute and that and a former one can stand together and both have effect, they will both have effect and be regarded as in force. But where a later statute not purporting to amend a former one, covers the whole subject and was intended to furnish the only law upon the subject, the former statute must be held to be repealed by necessary implication. Heckmann v. Pinkney, 81 N. Y., 215; People v. The Gold and Stock Tel. Co., 98 id., 67; U. S. v. Tinen, 11 Wall., 88; People v. Jaehne, 3 N. Y. State Rep., 11.

The omission by the legislature to create the office of fence viewers for the city of Rochester may be regarded as unintentional. It occasionally occurs in the affairs of the state that its general laws become inoperative for a period of time in certain and limited localities, because there has been a failure on the part of the legislature to provide the necessary officers and tribunals to carry into effect the provisions of existing laws.

It is impossible to believe that the legislature in creating a municipal government for the inhabitants living within the limits of the city of Rochester, intended to interfere with the existing law on the subject of distress and restore the common law, which permitted the party making the distress to keep the cattle seized in his own possession for an unlimited period of time without giving notice to the owner, and that such detention would be lawful until the latter should- make a tender of amends. It has been repeatedly held that if a party making a distress of animals ■damage-feasant failed to comply with the requirements of the statute he was liable as a trespasser, ab initia. The special remedy given by the statute as a means of securing indemnity for the damages sustained, is in addition to the common law right of action for damages, and the injured party has an election which he will pursue. The distrainor acts at his peril, and if he is unable to comply with the provisions of the statute for the reason that the officers who are to assess the damages do not exist, or cannot be found within the time prescribed by the statute thereafter, then the seizure is unlawful, and the owner may bring replevin to recover ’ the possession of his property. •This was the defendant’s position, «and the seizure and detention of the cow was unlawful.

If assessors for the city were authorized to act as fence-viewers, as respondent contends, then it is conceded by the appellant that the detention was unlawful and the judgment should be affirmed.

But, as has been expressed, we are of the opinion they did not possess such powers.

Judgment affirmed.

All concur.  