
    The People of the State of New York, Appellant and Respondent, v. Jacob Bootman et al., Respondents and Appellants.
    
      People v. Bootman, 72 App. Div. 619, 620, affirmed.
    (Argued January 19, 1903;
    decided February 10, 1903.)
    Cross-appeals, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1902, which affirmed an interlocutory judgment of Special Term sustaining in part and overruling in part a demurrer to the complaint. The following are the questions certified:
    “ First. Do counts I to XIII, both inclusive, of the amended complaint state facts sufficient to constitute a cause of action ?
    
      “ Second. Is the plaintiff entitled to maintain a civil action ■ for the recovery of penalties under section 39 of the Forest, Fish and Game Law, constituting Chapter 31 of the General Laws of the State of New York, for a Violation of any of the provisions of Article II of said Act ?
    “ Third. Is the amended complaint defective because it is not therein alleged that the various birds for the possession of which the defendants are sought to be charged with penalties were taken or killed within the boundaries of the State of New York?
    
      “ Fourth. Are facts sufficient to constitute a cause of action stated in counts numbered from XIY to XIX, both inclusive, of the amended complaint, or in either of said counts ?
    “ Fifth. Can the defendants be made liable in this action under Section 33 of the Forest, Fish and Game Law, as amended by Chapter 91 of the Laws of 1901, and Section 39 of said Act, by reason of the possession by them as alleged in counts XIY to XIX, both inclusive, of the amended complaint, of the birds described in said several counts ? ”
    
      Frank S. Black and Henderson Peck for plaintiff, appellant and respondent.
    
      Louis Marshall and Julius Offenbach for defendants, respondents and appellants.
   Judgment affirmed, without costs to either party, on opinion of O’Gorman, J., below; the first and second questions certified answered in the affirmative, and the third, fourth and fifth in the negative.

Concur: Parker, Ch. J., Bartlett, Haight, Martin, Cullen and Werner, JJ. Absent: O’Brien, J.  