
    State Conservation Commissioner, by Edward Foley, Game Warden, Plaintiff, v. George H. Hewlett, Defendant.
    City Magistrates’ Court of City of New York, Borough of Brooklyn, Seventh District,
    February 27, 1932.
    
      Thomas J. F. Kirk, for the defendant.
   Haubert, City Magistrate.

The information in this proceeding charges “ that one George H. Hewlett [the defendant] on or about the 7th day of January, 1932, at Barren Island, in the City of New York, County of Kings, N. Y., did then and there unlawfully, wrongfully, knowingly, willfully and contrary to the statute in such cases made and provided committed the crime of misdemeanor, by then and there taking shellfish [soft clams] from the uncertified waters of Dead Horse Bay, Barren Island, without first procuring from the State Conservation Department a permit so to do, contrary to and in violation of section 315 of the Conservation Law. * * *”

Defendant’s defense to the charge was that he had taken the shellfish for bait purposes and not for food.

After presentation of the People’s case, no testimony was introduced by or submitted on behalf of the defendant; he, however, stipulated on the record through his counsel that he had taken a bushel of shellfish [soft clams] from the waters in question for bait purposes only. No evidence whatever to the contrary, controverting defendant’s admission or confession, was submitted by the People.

Shellfish ” is defined to include oysters, scallops and clams of all kinds, according to section 380, subdivision 18, of the Conservation Law of the State of New York.

A careful perusal of section 315 reveals that nothing is contained therein requiring sanitary permits to be obtained from the superintendent of marine fisheries by persons to take shellfish either from certified or uncertified public waters in this State for bait purposes. In other words, no mention whatever is made therein prohibiting the taking of shellfish for bait purposes. In effect it will be found, upon perusing sections 310, 311, 312 and 315 of said Conservation Law, that wherever reference is made therein to the taking of shellfish, it is always in connection v/ith the use of same for food (human consumption). Therefore, it seems that a sanitary permit is not required by the law of this State to take shellfish for bait purposes. The defendant is, therefore, found not guilty ” and discharged.  