
    William Rockefeller, Respondent, v. Oliver Lamora, Appellant.
    
      Trespass upon a private park — the owner may in Ms own name recover the actual and also exemplary damages — sections 185 and 188 of the Forest, Fish and Game Law do not apply to such a case — objection that a verdict is unjust—who cannot take it.
    
    The owner of a private park established pursuant to article 11 of the Forest, Fish and Dame Law may maintain, in his own name, and without obtaining permission of the chief game protector or the Forest, Fish and Dame Commissioner, au action to recover damages for a trespass upon such private park, • and may recover therein, not only, the actual damages sustained by him, but the exemplary damages provided for in section 203 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 19Ó1, chap. 543).
    Sections. 185. and 188 of the Forest, Fish and Game Law have no application to such an action.
    Whore one party submits to a verdict recovered by him, the other party cannot be heard to insist that the verdict shall be set aside because it is unjust to the one recovering it.
    Appeal by the - defendant, Oliver Lamora, from a judgment of the County Court of- Franklin county in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 27th day of December, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office in December, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      J. Newton Fiero and Saunders & Saunders, for the appellant.
    
      John P. Kellas, for the respondent.
   Houghton, J.:

This case has been twice before us on appeals by the plaintiff and the questions then raised fully considered, first in 85 Appellate Division, 254, and again in 96 Appellate Division, 91. The facts and claims of the parties were there fully stated, and it is unnecessary to repeat them.

The defendant now appeals. from a verdict rendered against him by direction of the court.

The plaintiff moved for a direction of a verdict and the defendant moved for a nonsuit.. Without the defendant asking to go to the jury upon any question, the court directed a verdict in favor of the plaintiff, leaving to the jury the question only as to whether the plaintiff should recover exemplary damages of twenty-five dollars for each of three trespasses or for only one trespass. The jury rendered a verdict against the defendant for eighteen cents damages. The plaintiff rested content with this verdict, but the defendant moved to set it aside, and an order was subsequently entered denying that motion.

This appeal presents two questions not heretofore specially considered, the one being that the defendant was on a public highway running through plaintiff’s park at the time of the alleged fishing and trespass, and the other that plaintiff cannot maintain an action for exemplary damages for trespass under the Forest, Fish and Game Law, but that such right, if any exists, is in the People of the State and not in the owner of the land.

With respect to the first claim it is sufficient to say that the pretended highway was a mere path or trail leading to the fishing grounds, and was in no sense a public thoroughfare so as to be or ever become a public highway. Besides, there was no request that the jury pass upon the question as to whether or not the path was a public highway upon which the defendant was justified in traveling or stopping."

The claim that the plaintiff has no right of action in his own name for trespass upon his own lands to recover the exemplary damages provided in section 203 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1901, chap. 543) is based upon the language found in section 188 of that law. The material portion of that section reads as follows:

§ 188. Actions by private persons or societies.—^ A private person, except the .owner or lessee of premises upon which a penalty is incurred, on giving security for costs to be approved by a judge of the court in which the action is brought; and any society or corporation for tlie protection of fish or game, may recover in his or its name any penalty imposed by this act, and shall be entitled in case of collection, to one-half of the recovery ; the balance shall be paid to the commission. Notice of the commencement of such an action shall be given to the chief game protector within fifteen days after the service of the summons therein, and failure to give such notice shall be a defense to the action.”

Section 185 of the same act provides that “ actions- for penalties under this act shall be in the name of The People of the State of New York,’ and must be brought on the order of the chief game protector or of a commissioner."

Sections 185 and 188 are found in article 10 of the law, which is headed “ Prosecutions.”

Section 203, which provides for the recovery of exemplary damages not exceeding twenty-five dollars for each trespass committed in addition to the actual damages sustained, is found in article 11 of the law, which provides for the laying out of private parks, and defines the rights of the owner therein.

The word “ penalty ” is not used in connection with the giving of exemplary damages in section 203. But the plaintiff indorsed his summons in the Justice’s Court “ Action for a penaltyand in his complaint, after stating all the facts which, if true, would entitle him.to the exemplary damages provided by the statute, alleges that the defendant became liable for Said penalty and exemplary and actual damages in the sum and amount of fifty-five dollars- It is plain that the plaintiff intended to sue for the damages given by t'he statute and not to bring his action for a common-law trespass simply.

We think that the provisions of section, 188 have no application to the bringing óf an action for exemplary damages by the owner of a private park established and maintained according to law, and that he can bring an action for the exemplary damages provided in section 203 in his own name and without permission of the chief game protector or the Forest, Fish and Game Commissioner, The provisions of article 10, in which sections 185 and 188 are found, manifestly relate to the penalties' incurred in the unlawful taking or killing or possession of the fish, birds and animals protected by law. The people can have no interest in trespasses upon a private park. The exemplary damages given by the statute and fixed at twenty-. five dollars, aré for the trespass, and not for the fish or game taken. It would be a strange construction of the statute to say that a person might establish and maintain a private park for the propagation- and protection of fish and game and that he was powerless to use the weapons given for its defense.

The jury gave the plaintiff but eighteen cents, whereas they could have given him not exceeding twenty-five dollars for each, trespass or offense. If the plaintiff is content with this, as he is, the defendant cannot complain that the verdict is too small, Where one party submits to a verdict the other cannot be heard to insist that it shall be set aside because it is unjust to the one recovering. (Wolf v. Goodhue Fire Ins. Co., 43 Barb. 400; Scheider v. Corby, 15 Hun, 493; Wood v. Belden, 54 N. Y. 658.)

The judgment and order should be affirmed; with costs.

All concurred.

Judgment and order affirmed, with costs. 
      
       See Laws of 1901, chap. 94.— [Rep.
     