
    John E. Overton, Appellant, v. Alfred P. Williams, Respondent.
    Second Department,
    June 17, 1910.
    Contract — Forest, Fish, and Game Law—game protectors—merging evidence — division of penalties.
    Where a State game protector who had obtained evidence of a violation of the former Forest, Fish and Game Law makes a contract with another protector who has procured evidence of a greater violation involving the first one, which provides that they will merge their evidence and divide the amount of the penalties recovered, the contract is founded on a valuable consideration and is enforcible, for the law gave to each protector the right to look up evidence of violations and to receive as part of his compensation one-half of any penalty recovered in an action brought on his information.
    Appeal by the plaintiff, John E. Overton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of Suffolk on the 31st day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Suffolk Trial Term.
    
      Leslie A. Davis, for the appellant.
    
      William Chilvers, for the respondent.
   Woodward, J.:

The plaintiff and defendant were game protectors under the provisions of the Forest, Fish and Game Law of the State of Sew York in 1906 and 1907, and in September, 1906, the plaintiff, in company with another, had procured evidence of a violation of the Forest, Fish and Game Law by one Louis Delemarre, of Sew York city. It appears that the defendant, at about the same time, had procured some evidence of a like violation of the statute by the same person, and that the number of birds involved in the case discovered by the defendant was much larger than in that of the plaintiff. The plaintiff and defendant met in the law office of Selah B. Strong, and after some conversation it was agreed between the plaintiff and defendant that the plaintiff should merge his evidence with that of the defendant, it being conceded that the birds involved in the plaintiff’s case were probably a ' part of the larger number embraced in.the defendant’s'case, and that the two would divide the one-half . of the penalties which should be recovered between themselves. The plaintiff brings this action to recover his share of the proceeds of the action for penalties, the action having been successful, and the learned court below has dismissed his complaint upon the merits, upon the ground that the contract .alleged was without consideration and against public policy. The plaintiff appeals from this judgment, and we. are of 'the opinion that the same 'should be reversed.

Section 172 of chapter 20 of the Laws of 1900, as amended by section 2 of chapter 206. of the Laws- of 1906, provided that protectors should “receive six hundred dollars a year and an allowance for expenses not exceeding fon'r hundred and fifty dollars a year,” and that “ each of said protectors shall receive one-half of the fines and penalties less the expenses of recovering the sum collected in actions brought upon information furnished by him.” It was clearly the policy of the statute to provide for the efficiency of the service by making a part of the compensation contingent upon the recovery of fines and penalties, and .each protector had a right to the benefits which grew out of his own activities in discovering violations of the Forest, Fish and Game Law. The plaintiff, so far as the evidence goes, had at least a fairly good case to be presented for fines and penalties ; he had a right to prosecute the same on getting.permission from the Forest, Fish and Game Commission. The defendant persuaded him to forego this right, and to join with the defendant in the prosecution of the larger claim, upon an agreement to divide the money which might be recovered, and we are persuaded that this forbearance on the part of the plaintiff for the benefit of the defendant constituted a good and lawful consideration for the contract, and that the learned court below erred in dismissing the complaint. This is not a case where the plaintiff was called upon in the discharge of his duties to furnish the evidence for the defendant ; the policy of the law gave to each protector the right to look up the evidence and to furnish the same for the purpose of collecting fines and penalties, and it gave to each one one-half of the sum collected for such fines and penalties above the costs of the proceeding to collect the same, and if the plaintiff saw fit to waive his right to bring an action to recover the penalties upon twelve birds that he might be permitted to share in the reward for a successful prosecution for fifty-three birds, including the twelve of which he already had evidence, we know of no considerations of public policy which have been violated, and we think, as we have already said, that there was a good consideration for the contract.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

Jenks, Burr, Rich and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  