
    The People, App’lts, v. William H. Coughtry, Resp’t.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 12, 1890.)
    
    Game laws—Venue.
    The provisions of § 3 of chap. 577, Laws 1888, that suits for violations of the act may be brought in an adjoining county, and that “ such suits shall be prosecuted to determination in the county where they shall be commenced,” unless discontinuance is directed by the chief game and fish protector, does not deprive the court of the power to change the place of trial to the county where the alleged offense occurred where the convenience of witnesses or the ends of justice demand it.
    Appeal from an order of the Albany special term, changing the place of trial from the county of Columbia to the county of Albany upon the ground of the convenience of witnesses.
    
      A. B. Gardenier, for app’lts; F. M. JDanaher, for resp’t.
    
      
       Affirming 33 N. Y. State Rep., 205.
    
   Landon, J.

The action is for the recovery of penalties for alleged violations by the defendant of the game laws. The violations are alleged to have been committed in the county of Albany. The action was brought by the district attorney of Columbia county and the place of trial laid in that county. The appellants’ sole contention is that under the statute the court had no power to-change the place of" trial. Section 3 of chap. 577, Laws of 1888, provides that “ such suits shall be commenced on the order of any game and fish protector, in the name of the people, by any district-attorney where the offence 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.”

Unquestionably the intent of the legislature was to authorize-in proper cases these actions to be brought in a county adjoining that in which the violation of the law occurred, but we do not think the legislature, by tl\e provision “ and such suits shall be prosecuted to determination in the county where they shall be commenced,” intended to deprive the supreme court of the power to change the place of trial from the adjoining county to the county where the alleged offence occurred. The jurisdiction to change the venue in actions where the convenience of witnesses or the ends-of justice demand it is ancient and useful.

The learned counsel for the appellant, points out in his instructive brief its antiquity, and the bench and bar would probably unite in attesting its usefulness. The constitution, art 6, § 6, confers upon the supreme court “general jurisdiction in law and equity.” The 8th section of the same article provides that “except as herein otherwise provided, the legislature shall have the-same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised.” The-power “ to alter and regulate,” implies that the old jurisdiction shall in some degree continue in an altered or regulated form. Many cases affirm the inability of the legislature to abridge the general jurisdiction of the court. DeHart v. Hatch, 3 Hun, 375, 380; People v. Supervisors, 49 id., 481; 18 N. Y. State Rep., 898; Brooklyn v. New York, 25 Hun, 612 ; People v. Nichols, 79 N. Y., 590; Alexander v. Bennett, 60 id., 206, Popfinger v. Yutte, 102 id., 42; 1 N. Y. State Rep., 334; Hutkoff v. Demorest, 103 N. Y. 380; 5 N. Y. State Rep., 597. Ordinarily an action to recover a penalty must be tried in the county where the cause of action arose. Code Oiv. Pro., § 9,83. Where the legislature authorizes such - actions to be brought .in another county, the propriety of the jurisdiction of the court to change the place of' trial to the county where the cause of action arose, if justice requires it, would seem to be clear. A legislative attempt to deprive the court of it would be an attempt to replace judicial' functions with legislative mandates.

We need pursue the subject no further than to say that we decline to impute to the legislature an intention, by the use of the language here employed, to deprive the court of its accustomed jurisdiction. The real intent of the act is manifest when the whole provision is read: “ 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 main intent is to prevent a discontinuance except under the direction of the chief game and fish protector. If there had been an intention to abridge the jurisdiction of the court, we think it would not have been disguised under an enlargement of the powers of this officer.

Order affirmed, with $10 costs and disbursements.

Mayham, J., concurs; Learned, P. J., takes no part.  