
    The People of the State of New York, Appellant, v. Silas Page, Respondent.
    Third Department,
    June 30, 1916.
    Conservation Law — action for penalty for using set line — evidence.
    Where, in an action under sections 176 and 183 of the Conservation Law, to recover a penalty for using a set line, it appears from the uncontroverted testimony that a line not distinguishable from one made by the defendant was found extended across a lake; that the defendant had placed minnows on the hooks; that two or three days thereafter he had brought home trout such as inhabited the lake in question; and that thereafter he "was seen to row out where the line was set, stopping at intervals, as if to make an examination thereof, a verdict should be directed against the defendant.
    It is the use of the set line for the purpose of taking fish that constitutes the liability, and it is not necessary that fish should actually be caught. Howard, J., dissented.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 17th day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of January, 1916, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Egburt E. Woodbury, Attorney-General, and William T. Moore, Assistant Deputy Attorney-General, for the appellant.
    No brief for the respondent.
   Cochrane, J.:

This is an action to recover a penalty of sixty dollars against the defendant for using a set line in the waters of Mud lake in the county of Hamilton on or about June 14, 1915, contrary to the provisions of sections 176 and 182 of the Conservation Law (Consol. Laws, chap. 65 [Laws of 1911, chap. 647], added by Laws of 1912, chap. 318, as amd. by Laws of 1913, chap. 508).

In the fore part of June, 1915, the defendant made a fish line by doubling a quantity of ordinary binding twine. This line when made he wound on a salmon can . and kept in his house several days. It then disappeared from the house and the same line or one-so nearly like it as not to be distinguishable was seen in the waters of Mud lake. It extended all the way across the lake, about eighty rods. It was fastened at the ends, and to it at intervals were attached lateral lines with hooks. A daughter of the defendant testified to the foregoing facts and also that she went fishing with her father in a boat on the lake and that she saw the line there and that her father put minnows on the hooks. No fish seem to have been caught at that time. Two or three days thereafter the defendant brought home lake trout such as inhabited the lake in question and gave them to his daughter and some were sold. This was between June fifth and June tenth. On June fourteenth the defendant with his son were seen by two witnesses to row out on the lake in the location where the line was set, stopping at intervals as if to make an examination thereof. These witnesses on the following day removed the line from the water and it was subsequently turned over to a game protector of the State. The defendant was not a witness and offered no testimony.

The uncontradicted testimony, therefore, shows that the defendant was using a set line for the purpose of taking fish in direct contravention of section 176 of the Conservation Law. It is not necessary to subject a person to the penalty that fish should actually be caught. It is the use of the set line for the purpose of taking fish that constitutes the liability. Said section 176 further provides: “ Any person aiding in any manner in such prohibited acts shall be deemed to have violated this section.” The placing of minnows by the defendant upon such a line or device constructed as this was, and under the circumstances disclosed by the testimony, permits no inference other than that the purpose of the defendant was to take fish from the lake in a manner condemned by the statute. The testimony being uncontradicted that the defendant was unlawfully fishing, the trial justice should have granted the motion of the plaintiff to direct a verdict against the defendant for the amount of the penalty.

■ The judgment and order should be reversed, with costs, and judgment ordered against the defendant for sixty dollars, besides costs.

All concurred, except Howard, J., who dissented.

Judgment and order reversed, with costs, and judgment ordered against the defendant for sixty dollars, besides costs.  