
    The People, Resp’ts, v. Hiram Rouse, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
      Filed July 7, 1891.)
    
    1. Game law—Jurisdiction.
    An action to recover penalties for violation of the game laws may be brought in his own county by the district attorney of a county adjoining that in which such penalties were incurred.
    3. Same—Constitutional law.
    The provision of § 3 of chap. 577, Laws 1888, that such actions “shall be prosecuted to determination in the county where they shall be commenced," is not unconstitutional as abridging the right of the court to change the place of trial for good cause shown, nor as interfering with the defendant’s right of trial by jury. The action being a civil one, the defendant has no constitutional right to a trial by jury in the county where the cause of action accrued.
    Appeal from a judgment entered in Herkimer county December 27, 1890, upon a verdict at the Herkimer circuit December, 1890, in favor of the plaintiff for $100.
    The action is brought to recover penalties for killing woodcock, and having in possession woodcock after the same had been, killed, in violation of § 9 of chap. 534 of the Laws of 1879, as amended by chap. 269 of the Laws of 1884. The killing and possession are alleged in the complaint as occurring in Fulton county in July, 1889. It is also alleged that the action is brought upon the order and complaint of one of the game and fish protectors of the state. The complaint is signed, “ Irving R. Devendorf, district attorney of Herkimer county, plaintiffs’ att’y.” The place of trial designated in the summons is Herkimer county, which adjoins Fulton.
    Upon the trial, when the plaintiff rested, the defendant moved for a nonsuit upon the following grounds:
    
      “First. That this court has no jurisdiction to try this case.
    “ Second. That the district attorney of Herkimer county, who is attorney for the plaintiffs in this case, had no authority or right to bring the action in Herkimer county.
    “ Third. That it appearing that the action is brought to recover penalties for a violation of the game laws, which penalties were incurred in the county of Fulton, the court sitting in the county of Fulton has jurisdiction and authority alone to hear and deter-mine this case.”
    The motion was denied and the defendant excepted.
    
      H. B. Cushney, for app’lt; Irving R. Devendorf dist. att’y Herkimer county, for resp’ts.
   Merwin, J.

—The questions upon this appeal arise upon the denial of the motion for a nonsuit. The defendant claims (1) that the district attorney of Herkimer county had no right to bring the action in Herkimer county, and (2) that the court sitting in Herkimer county had no jurisdiction to try the case.

It is very doubtful whether the first question above stated can be raised upon a motion for nonsuit. Ordinarily the right of the plaintiffs attorney to bring the action, and the correctness of the. location of the place of trial, are matters to be questioned, if at all, before the trial is entered upon. Under the Code, § 985, if the county designated in the complaint is not the proper county, the action may nevertheless be tried there, unless the proper steps are taken to accomplish a change. Passing this, however, and coming to the statute under which the district attorney acts, it is there, § 3 of chap. 577 of the Laws of 1888, provided that suits of this character “ shall be commenced on the order of any game and fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where they shall be commenced, unless for good cause appearing a discontinuance shall be directed by the chief game and fish protector.” The section further provides that if the district attorney of any county where suits may be thus commenced is not able by reason of the press of other business to give the case proper attention, the game protector may employ other counsel in the same county to commence and conduct such suits to termination, with the same authority in the premises that the district attorney would have. This section, it will be seen, very distinctly gives the district attorney of an adjoining county the power to act; and the inference is quite strong that such action was designed to be within his own county. Very clearly the legislature intended to confer the right to bring such suits in an adjoining county. There was otherwise no reason for designating the prosecuting official of such county. -

The question here is not affected by the case of People v. McDonald, 108 N. Y., 655; 13 N. Y. State Rep., 902; reversing 44 Hun, 592; 8 N. Y. State Rep., 494. In that case, the district attorney of Fulton county commenced an action for penalties incurred in the adjoining county of Saratoga, and the place of trial was laid in Fulton county. A motion was made at special term to dismiss the complaint upon the ground that the district attorney of Fulton county was not authorized to bring the action for a penalty incurred in Saratoga county. The statute under which the district attorney acted, § 1; chap. 591 of 1880, as amended by chap. 317 of 1883, did not confer any specific authority upon the district attorney of an adjoining county to act, and for that reason, it was held that the motion should have been granted. See dissenting opinion of Learned, P. J., at general term, adopted by the court of appeals. • In the statute in the present case, we have the specific authority that the McDonald case lacked.

The question raised as to the jurisdiction of the court seems to be based upon two propositions: Pirst. That the act of 1888 is unconstitutional, in that it provides that the actions “shall be prosecuted to determination in the county where they shall be commenced,” thereby abridging the constitutional jurisdiction of the supreme court and preventing it from changing the place of trial for good cause shown. Second. That a party sued for a penalty has a constitutional right to a trial by jury in the county 'where the penalty was incurred. In People v. Coughtry, 58 Hun, 245; 34 N. Y. State Rep., 706, it was held that, notwithstanding the provision above quoted, the supreme court had power to change the place of trial when the convenience of witnesses or the ends of justice demanded it, and that there was no design on the part of the legislature to abridge the jurisdiction of the court. ' Even if that particular provision was unconstitutional it would not affect the other provisions. People ex rel. etc., v. Kenney, 96 N. Y., 294. It would leave the defendant to his ordinary remedy for changing the place of trial.

We fail to see how the defendant’s right to a trial by jury has been interfered with. The action, though for a penalty and in the name of the people, is only a civil action, People v. Briggs, 114 N. Y., 65; 22 N. Y. State Rep., 317, and the incidents of civil actions apply to it. Ho law or case is cited to the effect that in a civil action a defendant has a constitutional right to a trial by jury in the county where the cause of action accrued. What the rule may be in criminal actions it is not necessary here to inquire.

We think that the motion for a nonsuit was properly denied.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  