
    The People of the State of New York, Appellant, v. Horace E. Stillman and Augustus C. Lockwood, Respondents.
    First Department,
    January 25, 1907.
    Game Law—; sale of foreign grouse—. erroneous nonsuit.
    In an action to recover the. penalty for.sélling grouse or partridge without giving a bond, as prescribed by section 27 of the Forest, Fish and Game Law, it is immaterial whether the birds were killed in this'State or in a foreign State, if' the defendant has not filed a bond.
    When" the defendants contend upon conflicting facts that they merely delivered the grouse as agents of foreign owners, the question whether they acted in that capacity only or actually sold individually or as agents is for the jury, not for the court, and a nonsuit is error.
    Although the defendants act as agent for a non-resident in making such sales, they are not relieved from liability.
    
      Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 9th day of June, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 20th day of August, 1906, denying the defendants’ motion for a new trial made upon the minutes.
    
      Robert G. Beatty and Selah B. Strong, for the appellant.
    
      Francis A. Winslow, for the respondents.
   Houghton, J.:

The action is to recover from the defendants penalties for selling grouse or partridges without having given the bond prescribed by section 27 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, added by Laws of 1903, chap. 291 and amd. by Laws of 1901, chap. 580 and Laws of 1905, chap. 335). .

The. defendants are engaged principally in the wholesale fish business. One of their salesmen received a box alleged to contain seventeen partridges, which is claimed to have come from the State of Rhode Island, and which was delivered at defendants’ place of business. Immediately thereafter the box with its contents was delivered to a firm of poultry and game dealers, and a sales slip reading “8| pr Pats 2.25 per 19.12” was made out, and on presentation by defendants the money was paid to them.

From the record it is apparent that there was no serious controversy on the trial that the box contained partridges. In any event the plaintiff made prima fade proof that such was the fact, and •it was immaterial whether the birds, were killed in this State or in a foreign one. (People v. Weinstock, 117 App. Div. 168, decided herewith.)

The real issue litigated was whether the defendants were guilty of selling, individually or as agents, within the meaning of the statute. This question under the proofs was one for the jury to pass-upon, and not-for the court. The defendants’ contention is that they did not sell the partridges, but that they merely acted as delivery and collecting agents for a brother-in-law of one of the defendants, who lived- in Rhode Island and dealt in game birds. Whether,, if this was all they did, it would; be a justification to them or-not, we do not feel called, upon at this time to determine.- On a retrial, which we conclude must be ordered, the jury may find that there was an actual sale by the defendants either as individuals or as agents for another, and tins question thus be eliminated.(

Of course, the ■ fact that the defendants, might have acted as agents for another, who was a nbn-resident, in making the sale could not relieve them from liability as selling agents. If it could the statute would become practically inoperative, for sales would always be conducted in this manner. Even if the mere acting as delivery and collecting agent for a foreign seller- does not render a person liable under thb statute, which question we do not decide, still it is manifest that acting-or claiming to act in that capacity cannot be . Used as a shield against the statute or as a mére subterfuge to evade its "penalties.

There being a question for the jury to determine the nonsuit was error, and a new trial must be granted.

• The judgment is reversed and a new trial granted, with costs to the appellant to abide the event.

■ Patterson, P. J., Ingraham, McLaughlin and Lambert,, JJ., concurred-. •

t Judgment reversed, new .trial ordered, costs to appellant to abide event. Order filed. "■  