
    The People of the State of New York, Plaintiff, v. Jacob V. Bootman and Howard R. Robinson, Defendants.
    (Supreme Court, Hew York Special Term,
    February, 1903.)
    Forest, Fish and Game Law — Complaint for a penalty need not refer to the statute nor need the summons refer to it, by indorsement, where the complaint is served with it — ¡Negativing exceptions to the statute — Penalty additional to punishment for the misdemeanor— Presumption from possession of birds in the forbidden season — Construction of amendatory act, L. 1901, ch. 91, §§ 30, 33.
    It is unnecessary in an action to enforce a penalty under the Forest, Fish and Game Law to recite or refer to the statute in the complaint.
    It is sufficient to allege facts bringing the case within the purview of the statute.
    Where the complaint is served with the summons it is not necessary to indorse a reference to the statute upon the summons.
    The Forest, Fish and Game Law, as amended by chapter 91 of the Laws of 1901, contains no exception which requires that, in an action to enforce a penalty under section 39 thereof, the complaint allege that the case is not within any saving clause of said act. The expression “ and is liable to a penalty ”, in section 39 of the act, means that in addition to the criminal liability the offender subjects himself to a civil action for a recovery of the penalty prescribed.
    The presumption of a violation of the statute, arising from the possession of the birds specified therein in the forbidden season, is as true as a rule of pleading as it is as a rule of evidence..
    Sections 30 and 33 of the amendatory act cannot be reconciled. Section 33 is applicable to birds for which there is no open season, and in order to create an offense thereunder it must appear not only that birds in the possession of the alleged offender are wild birds but also that they are birds for which there is no open season, while section 30 relates only to birds for which there is an open season except from May first to August thirty-first, both inclusive.
    The complaint in this action consisted of nineteen counts, the first of which is as follows: “ For a first, separate and distinct cause of action, that the defendants were, during all the times hereinafter, and still are, copartners in trade and engaged ini business in the City and County of ¡New York, State of ¡¡Slew York, under the firm name and style of Bootman & Robinson; that heretofore, to wit, on the 23rd day of May, 1901, at the said City and County of ¡New York, the defendants, copartners as aforesaid, unlawfully, wilfully and knowingly possessed four hundred and ninety-six (496) grouse and two hundred and thirty-six (236) quail during the close season for said grouse and quail respectively, contrary to the form of the statute in such case made and provided. That by reason of the premises, the defendants then and there became liable to a penalty of Sixty dollars and to an additional penalty of Twenty-five dollars for each bird, grouse and quail so possessed, to wit, the sum of Eighteen thousand three hundred dollars, and amounting in all to the sum of Eighteen thousand three hundred and sixty dollars. That thereafter, to wit, on the 6th day of July, 1901, at the State aforesaid, the Chief Game Protector of the State of ¡New York, duly ordered that this action be brought, and the same was and is brought on said order by the undersigned attorneys and counsellors at law, then duly, retained and employed therefor.”
    Counts n-Xni, both inclusive, were of the same general character.
    
      The fourteenth count is as follows: “ For a fourteenth separate and distinct cause of action, that the defendants were, during all the times hereinafter mentioned, and still are, copartners in trade and engaged in business in the Oity and County of Hew York under the firm name and style of Bootman & itobinson; that heretofore, to wit, on the 24th day of May, 1901, at the said City and County of Hew York, the defendants, copartners as aforesaid, unlawfully, wilfully and knowingly possessed certain wild birds, other than the English sparrow, crow, hawk, crane, raven, crow blackbird, common blackbird, kingfisher, and birds for which there is no open season, to wit, eight hundred and eight (808) plover, and contrary to the form of the statute in such case made and provided and without and not under the authority of any certificate issued under this act, to wit, An Act of the Legislature of the State of Hew York, entitled an Act for the protection of the Forest, Fish and Game of the State of Hew York, constituting Chapter 31 of the General Laws, passed February 19th, 1900, as amended by Chapter 91 of the Laws of 1901, passed March 12th, 1901. That by reason of the premises the defendants then and there became liable to a penalty of Sixty dollars and to an additional penalty of Twenty-five dollars for each bird, so possessed, to wit, the sum of Twenty thousand two hundred dollars and amounting in all to the sum of Twenty thousand two hundred and sixty dollars. That thereafter, to wit, on the 6th day of July, 1901, at the State aforesaid, the Chief Game Protector of the State of Hew York, duly ordered that this action be brought and the same was and is brought on said order by the undersigned attorneys and counsellors at law, then duly retained and employed therefor.”
    The fifteenth count, which is in substantially the same form, seeks to recover penalties for the possession of 876 English snipe, 602 plover, 1,416 snow buntings and 96 snipe.
    The sixteenth count seeks to recover penalties for the possession of 288 reed birds, 3,630 plover and 1,512 snow buntings.
    The seventeenth count seeks to recover penalties for the possession of 1,336 snipe and 3,168 sand-pipers.
    The eighteenth count seeks tó recover penalties for the possession of 720 reed birds, 5,760 snow buntings, 1,439 sand-pipers, 488 yellow legs, 150 plover.
    The nineteenth count seeks to recover penalties for the possession of 3,658 plover, 3,000 sand-pipers,- 4,800 snipe and 300 yellow legs.
    The defendants demurred to the amended complaint and to each of the causes of action therein set forth on the ground that it did not state facts sufficient to constitute a cause of action.
    Section 30 of the Forest, Fish and Game Law, as in force when the plaintiffs alleged causes of action accrued, read as ■follows: “The close season for Wilsons (called English snipe), yellow legs, plover, rail, mudhen, gallinule, surf-bird, curlew, water-chicken, jack snipe, bay snipe, or shore bird shall be from May first to August thirty-first, both inclusive.”
    The act contained no provision declaring that there shall be no open season for sand-pipers, snow buntings and reed birds.'
    Section 33 read as follows: “ Wild birds, other than the English sparrow, crow, hawk, crane, raven, crow blackbird, common blackbird, kingfisher, and birds for which there is no open season, shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this act.”
    Section 39 provided: “A person who violates any provision
    of this article is guilty of a misdemeanor and is liable to a penalty . of Sixty dollars, and an additional penalty of Twenty-five dol- . lars for each bird taken or possessed in violation thereof.”
    Frank S. Black and Henderson Peck, for plaintiff.
    Louis Marshall and Julius Offenbach, for defendants.
   O’Gorman, J.

The statute under which this action is instituted extends over the entire State and is in no sense a local law. It was, therefore, unnecessary to recite or refer to the act in the complaint. The pleader was required only to allege facts bringing the case within the purview of the act, and this has been done. Section 1897 of the Code is inapplicable. The ' complaint accompanied the summons, and in such a case no reference to the statute need be indorsed upon the summons. The statute in question contains no exception within the. section of the act, and the complaint, therefore, does not offend against the rule requiring the pleading to show that the case is not within an exception to the statute. The expression, “-and is liable to a penalty,” etc., in section 39 of the act, clearly means that in addition to the criminal liability .the' offender subjects himself to a civil action for the recovery of the penalty prescribed. There is no such ambiguity in the language as to support the defendants’ contention. The possession of the birds at, the forbidden season within the State is prima facie evidence that the possessor has violated the law, and the burden is then cast upon him of proving facts to show that the possession is legal (People v. Buffalo Fish Co., 164 N. Y. 99), and this is as true as a rule of pleading as it is concededly true as a rule of evidence. As to the birds mentioned in counts XIV to XIX of the complaint, the claim of the defendants must be upheld. Sections 30 and 33 cannot be reconciled. Under section 30- plover and snipe have a closed season from May first to August thirty-first, and section 33 is applicable tó birds for which there is no open season. In order to create an offense under section 33 it must appear "not only that the birds are wild birds, but also that they are birds for which there is no open season. Therefore, if they are birds having an open season, or if there be no express provision that there shall be no open season, the taking or possession of them constitutes no offense. Courts will go far to preserve the paramount intention of the Legislature where it is possible to do so, but here the incongruities are so serious and irreconcilable that the construction urged by the plaintiff’s counsel can be yielded to only by the court usurping legislative functions. No cause of action is set forth in these counts, and as to them the demurrer is sustained. In all other respects the demurrer is overruled.

Ordered accordingly.

Note.—An appeal was taken from the interlocutory judgment entered on this decision to the Appellate Division of the First Department and resulted in an affirmance, no opinion being delivered. 72 App. Div. 619. Thereafter the following questions were certified to the Court of Appeals:

1. Do counts I to Xni, both inclusive, of the amended complaint- state facts sufficient to constitute a cause of action?

2. 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?

■ 3. 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?

4. Are facts sufficient to constitute a cause of action stated in counts numbered from XIV to XIX, both inclusive, of the amended complaint, or in either of said counts?

5. Gan 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 XIV to XIX, both inclusive, of the amended complaint, of the birds described.in said several counts?

On February 10, 1903, the Court of Appeals rendered the following decision (173 N. Y. 622) : “ Judgment affirmed without costs to either party, on opinion below;, the first and second questions certified answered in the affirmative, and the third, fourth and fifth in the negative.  