
    The People of the State of New York, Appellant, v. Eldon Bisbee, Respondent.
    First Department,
    June 2, 1916.
    Penalty—action to recover for violation of sections 176 and 178, Conservation Law — shipment of partridges killed in Maine — proof not establishing liability of defendant.
    The People are not entitled to recover a penalty for a violation of section 176 and subdivision 4 of section 178 of the Conservation Law, where the proof shows that the defendant, having gone to the State of Maine, procured a license authorizing him to kill partridges in that State and to ship them therefrom, and that in pursuance of said authority he delivered partridges killed by him to an express company, consigned to himself in the State of New York, where he resided, and they arrived in the State of New York during the season when it was lawful for partridges to be taken in said State, even though no importation license was issued by the authorities of this State, there being no proof that the birds ever arrived at their destination or were delivered to the defendant.
    Appeal by the plaintiff, The People of the State of New York, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, first district, dismissing the complaint herein. Also an appeal is taken from the judgment of the Municipal Court, entered in the office of the clerk of said court on the 19th day of March, 1915.
    
      
      Fiorello H. La Guardia, for the appellant.
    
      Abraham Freedman, for the respondent.
   McLaughlin, J.:

This action was brought in the Municipal Court of the City of New York to recover $310 under section 182 of the Conservation Law for a violation of section 176 and subdivision 4 of section 178 of the Conservation Law (Consol. Laws, chap. 65 [Laws of 1911, chap. 647], §§ 182, 176, 178, subd. 4, added by Laws of 1912, chap. 318, as amd. by Laws of 1913, chap. 508). The violation alleged consisted in defendant’s shipping, by the American Express Company, on the 7th day of October, 1913, from the State of Maine, ten partridges consigned to himself in the city of New York. The trial court held that the plaintiff was not entitled to recover. From a judgment to that effect the plaintiff appealed to the Appellate Term, where the judgment was affirmed (90 Mise. Rep. 601), and by permission the present appeal was taken.

There is no dispute as to the facts, the same having been agreed upon. From these facts it appears that the defendant at the time was a resident of the city of New York; that he went to the State of Maine and there, for twenty-five dollars, procured a license authorizing him to kill partridges in that State and to ship them therefrom; that in pursuance of this authority he so killed and shipped the partridges in question; that the box in which they were shipped was so constructed that they were exposed to view; that attached to the box was a tag from the license issued by the State of Maine stating the fact that the partridges contained in the box were taken in Maine by defendant, who was licensed by that State to take and ship them; that no shipping permit or importation license issued by the authorities of the State of New York accompanied the partridges; that they arrived in the State of New York during the season when it was lawful for partridges to be taken in such State and there used by persons lawfully taking them.

The conclusion at which I have arrived renders it unnecessary to pass upon the question as to whether the statute under which the action was brought is unconstitutional. Such question, under the stipulation as to the facts, is not presented. The defendant had a right to take the partridges when and where he took them. He had a right to ship them at the time and in the manner in which he did. It was a legal shipment ind there certainly could be nothing illegal in shipping them to the State of New York until they had arrived at their destination and a delivery made to the defendant. There is nothing in the stipulation to show that they ever arrived at their destination or were ever delivered to the defendant; in fact, there is nothing to show that they were ever delivered to anybody except the express company, and for that act defendant was not liable under the statute, the concession being they were legally shipped.

The determination of the Appellate Term, therefore, should ■ be affirmed, with costs.

Clarke, P. J., Dowling and Smith, JJ., concurred; Page, J., concurred in result.

Determination affirmed, with costs.  